Gross Misconduct hearing - ** REINSTATED AFTER APPEAL WON **

[MrHat]

Dear all.

 

I am enquiring on behalf of someone else. Sorry for late notice, I know that this might not be seen in time, nut I thought I'd reach out for some advice anyway.

 

Person (X) is an employee of a high street bookies as an Assistant Manager in a branch.

Has been employed for 11 months and is rated highly by her direct line manager.

Had a squeaky clean disciplinary record until recently.

 

Final Written Warning issued late Dec

 

In early Dec, the shop had a 'mystery customer' and the shop failed.

X was working alone at the time.

The shop scored badly in the mystery shopper test along with nearly all other shops in the area

(this is a typical retail structure: shop managers, area manager looking after a dozen shops and regional manager above that).

 

X was investigated and using CCTV, she was seen talking on her mobile phone behind the counter.

A hearing took place and she was told that she would receive a Final Written Warning (this is a first offence).

 

Seems harsh to me when a first written warning is an option but that's just my opinion.

 

She is still waiting for the letter confirming this and has not been given a chance to appeal this decision as yet.

 

Next incident - early Jan - Gross Misconduct

 

One evening, again working alone, a group of men came into the shop.

 

It turns out later that one of them is a known conman who goes around bookies trying to defraud.

I know many who work in this industry and the betting shops are not interested in pursuing fraudsters

and are instead focussed on prevention. It is normally the staff who take the bullet.

 

One of the group placed a bet just before a race and then used a trick (involving distraction techniques by the group)

to alter the selection after the race had finished.

 

 

The result is that the customer walked out with £1.5k of ill gotten gains.

They also tipped X £20.

It is common for a winning punter to tip the cashier in this industry (I mention this because it comes up later).

The known fraudster always stayed in the corner of the shop and avoided the counter.

 

Errors made by X include:

 

X paid out on the basis of the altered slip rather than following correct procedure.

There happens a lot apparently but is not good practice.

 

X also failed to run it past security who would have likely spotted the fraud.

There is some mitigation here as the race track in question is a new one and not on the 'call security list' yet.

 

Investigation

 

X has been investigated and evidence (incl CCTV) collated and a hearing for Gross Misconduct is due tomorrow (is currently suspended on full pay).

X will be accompanied by her manager who wants to keep her in the organisation.

 

Accusations in the letter are:

 

1. Allowing the customer to defraud the company with the intent so that X can personally gain

(I wonder if they are suggesting that by receiving a tip, X was 'in on it'.

We feel can successfully challenge this point as it is simply not true)

 

2. Not using correct procedure to put the bet on the system so that the altered slip was used instead of the scan of the original

 

3. Not phoning security

 

Mitigating factors:

 

2 is bad practice and other staff often use the paper slip to put the bet on the system as scans are often faded and difficult to read.

This is a weak excuse in my opinion but I wonder whether it amounts to gross misconduct.

A warning combined with training would be remedial, especially as X is of good character and has a good record.

 

3. He manager has a list of tracks whereby if a bet wins, security must be called before pay out.

New track means that the list is not up-to-date so X did not realise.

X can demonstrate that correct procedure has been used previously for those on the list.

Also, unlike some, X has not been sent to training course on security

or been given any of the available training.

X has been overlooked

 

Questions:

 

It looks pretty damning, doesn't it? My gut feeling is that X will be dismissed.

 

1. Should this not be found to be Gross Misconduct, is this not a different strand of procedure

meaning that the recent Final Written Warning is not related and therefore X could end up with 2 x FRWs instead of dismissal

 

2. What are the implications if they do not have the above view

and treat as the same strand despite not having the opportunity to appeal the other FRW?

 

3. X has not completed 2 years of service so tribunal cannot get involved at a later date if X feels it is unfair.

However, what if the employer does not follow procedure properly and breach their contract?

 

 

I'm thinking about the right to appeal, not using a first written warning for the original offence

 

4. Any other advice?

 

Many thanks!

[havinastella]

Hi Mr HAt, excellent post.

 

I am no HR Guru, but I think the Employer has followed proceedure to the letter. I fail to see ANY good outcome from this.

[unclebulgaria67]

How much of this is in hindsight ?

 

It is what was known at the time by her ? E.g The companies procedures on bets, security and staff being given money by winning punters. There is a mention of lack of training and this could be important, if the companies procedures were not made aware to her.

 

I would think the companies employees handbook on disciplinary issues would be key. Perhaps using personal mobile phones behind the counter is seen as a bad offence, with a final warning always issued. Then there follows an incident,where she may not have followed the companies procedures.

 

The way to challenge this, is to concentrate on the latest allegation being made and how aware she was of the correct company procedures that should be followed. Each employee should really have a training record to confirm that they have been made fully aware of the companies procedures. If other staff have been taking tips from winning punters and doing things whuch are not compliant with company standards, this is no excuse, unless they trained her in incorrect procedures.

[MrHat]

Thanks guys.

 

To clarify - there is no rule against accepting a tip from a customer. It is very common.

 

I think points 1 and 3 can be challenged, It's point 2 that is damning.

 

To expand:

 

The 'customer' writes a bet out on traditional slip and hand it over.

Cashier then puts it through the scanner.

Cashier is then supposed to 'translate' the bet onto the system

(i.e. marry up what is written on the slip with what the selection and stake is on the system).

 

 

This does not always happen right away and it is normal to translate later when, for example it is busy or there is a queue before a race is about to go off.

 

The customer had written a phone number on the back of the slip and said to X - can I have than back a second,

I think I wrote a phone number on the back,

 

 

There was a phone number on the back so X obliged, the slip was then returned to her

but without X knowing, the slip had been altered subtly.

Remember there is already a scanned version on the system (un-translated).

 

When paying out, X went to translate but the scanned version was not clear so looked at the paper copy

and 'translated' with the doctored slip.

Apparently the scans are not always clear.

This is the critical error: they have it made clear that 'IF IN DOUBT - CALL SECURITY'. X did not.

 

Only mitigation is that there were 4 of them surrounding X, asking questions, getting X to look up prices

- all intended to bewilder and confuse.

They were professional con artists.

 

-----------

 

I firmly believe that if they want to fire X, they will do and there is little that can be done.

They may take the view that it is not procedure or training that is at fault

and that they way to deal with it is to fire the individual at the bottom.

 

If they wanted to keep her, they could on the basis of training, learning lessons.

"Fool me once, shame on you. Fool me twice shame on me".

 

 

From a business pov, perhaps it is less risky to have an employee who knows what it is like to be conned

, gets more training and has a year's experience, than it would be to bring in a novice.

 

I will see if I can get a copy of handbook and get my highlighter out!

 

Cheers

[MrHat]

One more factor to consider. X is being accompanied by X's manager who doesn't want X to be fired. What can and cannot the manager say to influence the outcome?

[CrappoMan]

Has X been trained in the correct procedures you outline, and can the company show a record of that training signed by X ?

Is it usual to be working alone ?

[MrHat]

X has had 'on the job' training but nothing official. Therefore no record. However, as far as point 2 is concerned, it is drummed into staff that if you are unsure, you call security. X is in the wrong.

 

X started 11 months ago but hasn't been on a security course. Since then it has been made policy that all new starters go on a training course in first few weeks of employment. X started before this became policy.

 

It is usual to work alone. Normally it's two people but nothing staff are required to work alone sometimes unless opted out.

[ericsbrother]

Like insurers, bookies dont like to admit they get defrauded and they cannot recover the monies so they take the easy option and clobber whoever they do have access to, their client or their staff member. I would be amazed if this ends well for your friend but hope that her manager can have some input and the truth is allowed to come out regarding the perils of lone working in bookies. The company knows it but cheaper to take a hit and fire someone than to employ 2 people in the first place. Shopworkers union has raised this umpteen times before but nothing done by courts or govt to improve the conditions

[MrHat]

I didn't want to bring my personal views about the practices in the industry but I totally agree

[MrHat]

Think I know what to advise here.

 

1. Intent to gain and aid is groundless

2 & 3 are procedures that x can demonstrate that X has always followed before. This occasion is mitigated due to being targeted by professional conmen. One element of a procedure is very recent and X (plus all staff) were not made aware. This would have prevented it from happening.

 

X has not deliberately ignored procedure

 

Suggest remedial action to ensure it never happens again.

 

My only q really is: can they add this onto the current final written warning or are they separate?

[renegadeimp]

1. You have to prove it. They just need reasonable suspicion, especially for under 2 years service.

 

As for not ignoring procedure, you already said X has ignored it and done it a different way. You could cite that incorrect training was given and there is no written and signed record, but i think as the others did. X needs to be prepared for the very realistic possibility of dismissal. Theyll be using X as a scapegoat and theres pretty much nothing you can do about it.

 

As for disciplinary, they can go from a clean record to dismissal if the infraction was serious enough. They could also add multiple written warnings on file. It all depends on circumstances and what they think at the outcome of the meeting. I hope X has a union rep or a knowledgeable representative.

[MrHat]

Thanks.

 

X's manager, who is v knowledgeable, is going with.

 

I agree that dismissal is likely. In fact, i think it is almost certain.

 

All one can do in this type of situation is to handle as best you possibly can.

[unclebulgaria67]

Your friend should be aware of her managers intentions, as it may come down to self preservation. If there is any suggestion of lack of training or bad practice taking place in that betting office, you can bet that the manager will protect their position, even if this means going against your friend. So probably best to support her defence with evidence the manager cannot dispute,

[stu007]

One thing that stands out to me on both occasions is they were working on there own (Lone Working).

 

So what is the companies Lone Working Policy?, have they been properly trained in Lone Working?, has a proper Risk Assessment been carried out?

[MrHat]

X has been fired for a second misconduct (not gross misconduct)

 

Not following company procedure by calling security and costing the company money

[renegadeimp]

I hope x is appealing as per their legal right?

[MrHat]

Intends to apparently. Although I spoke to X once, most of the info I have recd is via X's colleague.

 

New info has come to light.

 

Apparently the previous final written warning was due to X using an e cigarette behind the counter (recently quit), not because of being on phone.

 

There appears to be no company policy on ecigs (although personally, if it was me, I would always assume ecigs are not allowed).

 

Apparently the first offence was treated as gross misconduct under the smoking policy.

 

The second offence has been treated as misconduct and triggered dismissal due to warning on file.

 

Neither disciplinary has been appealed yet as the letter for previous one only just arrived.

 

I have requested copies of letters and meeting notes from X and will review before bothering you lot again!

[unclebulgaria67]

Think they need to dig into company policies and what they knew. It might mean having to put the manager under the bus, if they failed to ensure adequate training on company policies and allowed someone inexperienced with lack of training to be left on their own.

[CrappoMan]

Are ecigarettes explicity banned under the smoking policy ? If not, then X should be appealing the first warning. An employer can't just treat them as a lit tobacco product after the fact. They must be either included in the smoking policy or have a seperate policy banning their use on company premises.

 

If the first warning is not valid, then the dismissal for a 'second' offence isn't valid either.

[MrHat]

That's what I got round to thinking.

 

 

Think thry have made up their minds already and messed it up slightly.

However, with less than 2 yrs service, i guess they are not too bothered.

 

X is out of time for the first appeal as letter was sent to old address and it is X's responsibility to tell head office this.

However, she did give her address during that original hearing and it is on the written notes from that meeting.

 

They have treated it as 'smoking'.

 

There is no policy in handbook hard copy about ecigs.

 

One final thing...

 

X is eastern European.

At the end of today's hearing she was told that she can appeal in writing 'but if it's in too good English, we will know that you didn't write it'

[renegadeimp]

If the last part is true then its discrimination. It matters not who wrotebit

[MrHat]

Renegadeimp, i thought the same about discrimination but didnt want to lead anyone's thoughts. Interesting that you have same reaction.

 

am hearing that it was heard by both the person who accompanied x and the note taker.

 

I will have all the paperwork this evening.

 

Thinking of a general appeal which (a) challenges the outcome and sanction of the first disciplinary and (b) therefore merely challenges the resulting outcome of the second one (but not challenging procedural 'misconduct')

 

I also think that X's appeal has been prejudiced by that comment

[JoeyJoeC]

It's a clever [problem] if it works that easily. I thought that the slip was only to enter bets on the system, and then verified on screen with the punter, and the slip is only then used to bring up the computers record of the bet. That's how it is at my local dogs, not sure why bookies don't have a better system in place.

[Guest topcat14]

X is eastern European.

At the end of today's hearing she was told that she can appeal in writing 'but if it's in too good English, we will know that you didn't write it'

 

 

Disgracefull behaviour.

 

No Policy for the company to follow on ecigs should means that there is no case to answer. As someone has stated the policy is for Smoking lit tobacco products and not Vaping ....totally different

 

This should be appealed

[CrappoMan]

ACAS have clear advice on what employers should do regarding e-cigs: http://www.acas.org.uk/index.aspx?articleid=4900

 

Did X's employer do any of the things mentioned ?