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

[Guest topcat14]

Vis from ACAS ....

 

Rules and policies

 

Employers should be clear about what their rules on the use of E-cigarettes at work are. If they already have a policy on smoking or one on drugs and alcohol then they could include a paragraph about E-cigarettes in there.

 

When introducing new rules, employers should first consult with any recognised union or elected representatives, and they should speak with all employees to make sure they understand what the new rules mean and that they apply to them.

 

Employers may want to put up signs or notices in the workplace which make it clear where smoking is allowed (if this is the case) and where it is banned. These should include rules for cigarette smokers and rules for E-cigarette smokers.

[MrHat]

there is no published policy re e-cigs in the handbook and X and her manager say they received no communication or guidelines to the contrary. The original hearing resulted in a final warning for gross misconduct due to smoking on work premises (was treated the same as actual smoking)

 

I have most of the paperwork now including letters, outcomes (still waiting for yesterday's), notes from meetings etc. Will take a look later

 

thanks again for all have looked in so far

[MrHat]

Ok i have looked at all docs now.

 

Initial written warning was for smoking on site. Gross misconduct

 

Second hearing resulted in a finding of misconduct and dismissal triggered by initial final warning and this.

 

I have found some procedural errors on their part and collated the main grounds for appeal:

 

Appeal the outcome and sanction of initial hearing:

 

1. Procedure: same person that investigated acted as note taker and company witness in hearing. This is against their own procedure as laid out in handbook. This policy prevents the hearing being prejudiced by the person that decided to take the matter to a hearing

 

2. Procedure: refused to take into account a letter from line manager saying that ecig policy was not known by him or x

 

3. Procedure: despite providing new home address, the company sent outcome letter to old address so no appeal possible. Letter fonally handed to x at second hearing. Therefore not out of time for appeal

 

4. No ecig policy in handbook or communicated. Acas guidelines say ecig cannot be treated under normal 'smoking' policy. There must be at least a para coveting ecigs. Therefore, decision incorrect. (Note: this is the only reason given for finding)

 

5. Sanction out of proportion

 

Second hearing appeal:

 

1. Do not appeal the finding of misconduct

2. Appeal the samction

3. Appeal the use of initial warning to trigger dismissal

 

Discrimination:

 

Quote the comment about 'if it's too good english, we will know you dod not write it'

 

Does this prejudice appeal procedure?

 

 

 

 

That's my skeleton for now. Thoughts?

 

Sorry for any typos. On my smartphone

[Guest topcat14]

Discrimination:

 

Quote the comment about 'if it's too good english, we will know you dod not write it'

 

Does this prejudice appeal procedure?

..............................................................................................................................

 

This should have no bearing on the appeal whatsoever. An appeal is just that, however it is communicated. Your grounds are sound based on the original sanction being too harsh in the absence of a written policy on ecig mis-conduct.

 

If the first sanction is found to be too harsh the second sanction of dismissal would fall away.....but.... the employer has a right to dismiss x just because x has less than 2 years of service, and simply in their opinion does not come up to the standards that are required for the job role.

 

I would follow the appeal process, but from my point of view (I work as a HR Manager) if they want x dismissed it will happen anyway.

 

If the employer tries to discriminate because of their country of origin and their english is not good, then that is a whole different ball game.

 

Good Luck

Edited January 12, 2016 by topcat14

[MrHat]

Thanks.

 

Does anyone know: Bearing in mind that there are two disciplinaries and outcomes, is it ok to treat as one and appeal everything innone letter?

[becky2585]

With under two years service and two acts of misconduct, I think it's probably wasted energy trying to aim for reinstatement. It's maybe time to let it go.

[MrHat]

I am aware of the two years rule re tribunals but disagree that appealing is wasted energy. It is a right and course of action that should be taken if the individual believes they have grounds

[MrHat]

Have put a letter together and X is appealing.

 

Will let you know how we get on.

[ericsbrother]

best of luck, have a fallback position of just getting a better severance payment because they arent going to re-employ and will undoubtedly claim that the employers relationship has broken down.

One of the most senior surgeons in the country was unlawfully sacked and ordered to be re-employed by the health trust that sacked him but they are now saying their rotten behaviour up to this point would prejudice his reinstatement so they arent obliged to due to this breakdown of relationships. Well if I were a surgeon I wouldnt give a rats what some pen pusher thought of me as long as he didnt need an operation that day...

[MrHat]

Appeal will be heard later this week.

 

Will be advising that X sticks to the points of appeal and is succinct and trueful.

 

Will let you know the outcome.

 

I would say odds on that decision is upheld due to less than 2 yrs service. However, the failure to follow correct procedure coupled with the discriminatory remark gives X a chance imo.

 

 

Having said that, I understand that the person chairing appeal is a loyal colleague of the person that fired X.

[renegadeimp]

Pity there's no union involved. You could have gotten free specific legal advice and representation

[MrHat]

Hearing done. X will be notified in writing within 14 days

[MrHat]

No response on 14 day mark. Will wait a few days more. Not sure what to do if they don't provide outcome

[MrHat]

To compound matters, X has not been paid final pay for work done and 1 week's notice. Should have gone in to account last week

[ericsbrother]

Wait until a pay cycle has passed and then send a lba saying that 3xx is due for (how much) work done and payment in lieu of notice Say that it is expected that this shortfall will be paid in the next salary run. Give them 14 days to respond and if they admit the shortfall they should pay up in the timescale set. If not then a claim can be made using the small claims procedure of the county court. the reason for the claim will be breach of contract.

[MrHat]

Ok, it looks like no response is forthcoming. Can a company just go quiet and ignore x despite no outcome as x was only there for 11 months?

 

Wasn't expecting a positive result (was hoping) but neither did I expect the appeal process to be abandoned.

 

Starting to think that the employer has decided to ignore x as x's appeal letter was in too good english.

[Emmzzi]

they clearly HAVE chosen to ignore it so the question is what do you do about it. You know I feel these is no strong legal case - I am not sure I see another option for you.

[MrHat]

I agree. Only thing that sticks out for me is the discriminatory comment and they have followed through on that (i.e. decided not to process beyond the hearing).

 

I haven't been involved in a case involving equality act but heard they have a poor success record

 

Thoughts?

[MrHat]

Have written to say that x will assume that company are no longer processing appeal unless x hears back in 7 days.

 

This with a view to going to mediation via acas

[MrHat]

X has now received the outcome to the appeal.

 

X has had dismissal overturned and the sanction changed to a final written warning. X will be reinstated.

 

Also, two people who were involved in the process are no longer allowed to be involved in future disciplinary issues and have been relieved of that specific duty.

 

I will read the letter properly tonight in full.

 

could we get the thread title amended to "Gross Misconduct hearing - dismissed - reinstated after appeal WON" or something similar ?

[Emmzzi]

Blimey, I am most surprised. Well done for your perseverance.

[MrHat]

Thanks emmzzi! Very happy with the outcome.

 

Appreciated your reservations but each case is different i suppose. Think X's good character helped. Not a trouble maker and easier for them to do the right thing imo

[honeybee13]

Well done, MrHat, I'm very pleased for you.

 

I'll amend the thread title.

 

HB

[MrHat]

Thanks.

 

To sign off this thread, I would like to thank everyone who took the time to contribute. All very valuable. X asked me to pass on thanks too.

 

Over and out.

[citizenB]

I am pleased to hear there has been a successful outcome, MrHat