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Alleged gross misconduct

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To summarise a very long set of events,

about a month ago I told my manager that some staff appear to be signing off on work which they have not actually completed to meet targets.

My manager responded by asking me to give her examples.

 

about three wks. later 21/5/18 the week when the office I work at was placed in Special Measures,

when I arrived at work after the morning team meeting,

my manager called me into a room & told me that I was being suspended for alleged gross misconduct.

 

When I asked what the allegation was, my manager said that it was broad & in relation to my apparent negligence & failure to appropriately manage a significant number of my allocated work.

 

On Friday 1st June, I received a letter from my employer instructing me to attend a Gross Misconduct investigation meeting tomorrow 4 June 2018.

I have no idea as to quite what the gross misconduct allegation is,

I have not been given any time to prepare & I am not allowed to bring a union rep or anyone with me to the meeting.

 

I feel that I will be ambushed tomorrow, that my employer just wants rid of me & that I am being scapegoated as a sort of whistle blower, particularly as the organisation is in Special measures.

 

Can I please get some advice as to how I approach the meeting tomorrow & if I am ultimately sacked, would I have any chance of success at a tribunal for either wrongful dismissal or constructive dismissal?

 

Can I challenge in a tribunal,

 

1. the policy of giving a person accused of gross misconduct, just 24hrs notice to attend an investigative meeting and

 

2. that such persons, cannot have a union rep in attending at the meeting?

 

3. That a person accused of alleged gross misconduct is not told on the day of suspension precisely what it is that they are alleged to have done instead of just being given a broad summary of the alleged misconducted which covers a wide area of work for which the organisation is currently in Special Measures.

 

Thanks

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I'm sure one of the employment experts should be along before too long to give a definitive answer. But with my employer, the answers to your questions would be:

 

 

  1. At least five working days should be given before summoning to a fact finding or disciplinary meeting.
  2. Either a work colleague or a union representative is permitted to attend.
  3. It would appear to be normal procedure to keep the allegations vague so that they can find something to pin on you (or at least in my experience).

 

Check your employee handbook for details of how the disciplinary should be conducted, and get your union rep on board at the earliest opportunity. If the employer sends you any letters that require a response (usually an acknowledgement of receipt of the letter), make sure you respond promptly and keep a record of the date sent.

 

If they make a pigs ear of the investigation and do end with a dismissal, you have every right to lodge an appeal and progress it to Employment Tribunal. But do make sure you follow the company process first with the appeal, and watch the calendar carefully. You have three months from the date of dismissal to start ET action. Some companies like to drag out the appeal as long as they think they can get away with.

 


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How long have you been employed with your presents employer?

 

Have you asked them for a copy of there Disciplinary & Grievance Policy? (get a copy ask them for it)

 

Have you been given copies of the evidence they will use at the Disciplinary Hearing?

 

Our employment gurus may ask more

 

a couple of links for you to look at:

 

Dismissing staff: https://www.gov.uk/dismiss-staff/dismissals-on-capability-or-conduct-grounds

 

ACAS - Can an employee be dismissed instantly for bad behaviour?: http://www.acas.org.uk/index.aspx?articleid=3905

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Just a few points

 

How long have you worked for this employer? What is the nature of the work?

 

Has the employer stated this to be an Investigatory meeting, or a Disciplinary hearing? If the former, then there is no automatic right to have a colleague or Union Rep present as this should be a preliminary meeting to establish facts. No advance notice need be provided. Notes should be taken and you should be allowed to agree to their content and to have a copy for your records. The outcome of the meeting may well be that the employer believes that a Disciplinary is warranted and it is at that stage that you should have written notice of the precise allegation, sufficient time to prepare and the right to be accompanied. You should also be advised what the potential outcome may be if the allegation is believed by the employer to be true following the hearing. If an Investigation hearing looks like becoming a Disciplinary then ask for the meeting to be suspended as you had not been given adequate time to prepare nor had been given evidence in advance or the right to have somebody present

 

Do you have a copy of the employer's Discipline and Grievance Procedures? If not you need to ask for a copy. Is the employer following due process for example? You state that this is being considered as a matter of Gross Misconduct yet what you have outlined as the reasons looks to be more a matter of Capability - unless the 'negligence' part involves something extremely serious? GM normally involves matters which would leave no doubt that dismissal could result - for example theft, violence, serious H&S breaches serious insubordination, working under the influence of drink or drugs - not an exhaustive list but hopefully you get the point. Failure to manage workload or poor work standards would normally warrant a warning and targets being set to improve prior to dismissal being considered. Again, you really need to see the relevant Disciplinary procedures to see whether the employer is correctly applying what you are accused of as being GM. Unless of course there are previous matters which are being taken into consideration, or whether there is a deeper allegation being made which is causing the alleged failure to perform? Is there a suggestion that you may have falsified documents to suggest that work is being completed which hasn't been? In essence are you accused of what you accused others of in the first place? What happened to those whom you accused of making false statements? Has one of your colleagues retaliated to being investigated by making an allegation about your own work practices?

 

Are you in a Union? If so then get them on board ASAP. If you are being accused of not completing work, then is this true? If so, why not? Can you provide evidence of work being completed as it should be? Any recent appraisals? Do they mention anything whichwould either justify or refute the allegations being made?

 

Don't think too hard about Tribunals at this stage. Concentrate on any evidence presented to you and the specific allegations and whether you can successfully refute them. Remember that the employer only needs to have a reasonable belief of guilt formed after a reasonable investigation so you will need to be able to prove that the allegation is baseless or that if dismissed on a trumped up charge, that no reasonable employer would have dismissed in those circumstances. And of course, Tribunal action would only be a possibility if you have at least two years service

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Just a few points

 

How long have you worked for this employer? What is the nature of the work?

 

Has the employer stated this to be an Investigatory meeting, or a Disciplinary hearing? If the former, then there is no automatic right to have a colleague or Union Rep present as this should be a preliminary meeting to establish facts. No advance notice need be provided. Notes should be taken and you should be allowed to agree to their content and to have a copy for your records. The outcome of the meeting may well be that the employer believes that a Disciplinary is warranted and it is at that stage that you should have written notice of the precise allegation, sufficient time to prepare and the right to be accompanied. You should also be advised what the potential outcome may be if the allegation is believed by the employer to be true following the hearing. If an Investigation hearing looks like becoming a Disciplinary then ask for the meeting to be suspended as you had not been given adequate time to prepare nor had been given evidence in advance or the right to have somebody present

 

Do you have a copy of the employer's Discipline and Grievance Procedures? If not you need to ask for a copy. Is the employer following due process for example? You state that this is being considered as a matter of Gross Misconduct yet what you have outlined as the reasons looks to be more a matter of Capability - unless the 'negligence' part involves something extremely serious? GM normally involves matters which would leave no doubt that dismissal could result - for example theft, violence, serious H&S breaches serious insubordination, working under the influence of drink or drugs - not an exhaustive list but hopefully you get the point. Failure to manage workload or poor work standards would normally warrant a warning and targets being set to improve prior to dismissal being considered. Again, you really need to see the relevant Disciplinary procedures to see whether the employer is correctly applying what you are accused of as being GM. Unless of course there are previous matters which are being taken into consideration, or whether there is a deeper allegation being made which is causing the alleged failure to perform? Is there a suggestion that you may have falsified documents to suggest that work is being completed which hasn't been? In essence are you accused of what you accused others of in the first place? What happened to those whom you accused of making false statements? Has one of your colleagues retaliated to being investigated by making an allegation about your own work practices?

 

Are you in a Union? If so then get them on board ASAP. If you are being accused of not completing work, then is this true? If so, why not? Can you provide evidence of work being completed as it should be? Any recent appraisals? Do they mention anything whichwould either justify or refute the allegations being made?

 

Don't think too hard about Tribunals at this stage. Concentrate on any evidence presented to you and the specific allegations and whether you can successfully refute them. Remember that the employer only needs to have a reasonable belief of guilt formed after a reasonable investigation so you will need to be able to prove that the allegation is baseless or that if dismissed on a trumped up charge, that no reasonable employer would have dismissed in those circumstances. And of course, Tribunal action would only be a possibility if you have at least two years service

 

Thank u so much fir your responses

I’ve worked for the organisation for 12 yrs. the employers until 20-5 was part of the civil service but was then privatised . The nature of the job is criminal justice.

 

They say it’s an investigatory meeting

 

I’ve been given copy of the ‘Limited Disciplinary Policy’’.

 

Yes I am in a union but they are not permitted to attend the meeting.

 

I have not been given copies of any evidence.

 

Could I possibly have a case under the Public Interest Disclosure Act 1998?. Again thank you for all the swift comments

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If it's an investigation meeting, you just turn up and tell the truth. It's not a disciplinary hearing yet, and may not come to that. So you are on your own, and the best thing is to be very honest!

 

 

 

The public has no interest in internal number games, so no.

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I agree totally - you turn up and just tell the truth.

 

Just one possible scenario you haven't considered is that this is happening to several people because of your complaint, and they have to investigate everyone to show fairness - or even possibly to cover your back by not treating you any differently? I assume that you told your manager in confidence, and didn't tell your colleagues that you'd complained about their work. So if you are the only person who isn't investigated then they won't have to look far for who tipped management off.

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Telling your manager about staff signing off uncompleted work is a Protected Disclosure

 

Do you have any evidence that you told your manager?

 

Do you have any evidence of the uncompleted work?

 

If you don't nobody will believe that you made a PD

 

In any event, you shouldn't be thinking about Tribunal at this stage

 

Concentrate on the Investigatory Hearing for now

 

If it ever gets to a Disciplinary Hearing make sure you point out to the Decision Maker that you made a PD

 

You must have your evidence by then.

 

That is why Jhute lost in the Royal Mail v Jhuti 2017 case

 

She didn't inform the Decision Maker that she made a PD

 

In Orr V Milton Keynes the Claimant failed to attend so didn't let the Decision Maker know that a racist statement had been made to him. He lost.

 

But as advised, concentrate on the Investigatory Hearing for now.

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I also saw that you made mention of constructive dismissal

 

I would strongly suggest you don't go there, or at least get paid legal advice

 

Constructive dismissal is VERY difficult to win

 

You don't just need legal advice

 

You need PAID legal advice

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There is little point in obtaining paid legal advice before you are dismissed. Anything less than that happens, and it's a waste of money as there is nothing a solicitor can do. At this point in time all that is known is that there is an investigation meeting. Nothing more. We cannot even assume that, if there is a protected disclosure here, and assuming that they can prove they made one, that the allegations are not true. Since the OP doesn't yet know exactly what those allegations are or what they relate to, then it is just as possible that they did do something than that they didn't.

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There is little point in obtaining paid legal advice before you are dismissed. Anything less than that happens, and it's a waste of money as there is nothing a solicitor can do. At this point in time all that is known is that there is an investigation meeting. Nothing more. We cannot even assume that, if there is a protected disclosure here, and assuming that they can prove they made one, that the allegations are not true. Since the OP doesn't yet know exactly what those allegations are or what they relate to, then it is just as possible that they did do something than that they didn't.

 

 

 

Constructive dismissal is when an employer creates a hostile environment that forces the employee to resign

 

The OP was the one that mentioned constructive dismissal

 

From my comments, it can easily be seen that I'm against it

 

If however, he still intends on resigning then he should get legal advice

 

I believe my point was clear

 

I would strongly dispute the statement that "there is nothing a solicitor can do" but I wouldn't say much as we will be hijacking his thread

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Constructive dismissal is when an employer creates a hostile environment that forces the employee to resign

 

The OP was the one that mentioned constructive dismissal

 

From my comments, it can easily be seen that I'm against it

 

If however, he still intends on resigning then he should get legal advice

 

I believe my point was clear

 

I would strongly dispute the statement that "there is nothing a solicitor can do" but I wouldn't say much as we will be hijacking his thread

 

I wasn't talking about constructive dismissal. I was advising against taking your advice to get PAID legal advice when there is currently nothing to advise on. Paying for something pointlessly is never a good idea.

 

I am aware that you can quote a lot of case law. Sometimes it is even relevant. I believe my point is very clear too.

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I wasn't talking about constructive dismissal. I was advising against taking your advice to get PAID legal advice when there is currently nothing to advise on. Paying for something pointlessly is never a good idea.

 

I am aware that you can quote a lot of case law. Sometimes it is even relevant. I believe my point is very clear too.

 

So I had the investigation meeting this afternoon. The manager who conducted the interview, used to sit a few feet away from me up to a wk before I was suspended 2 wks ago . They were in discussions with my manager last wk & have for months had communication with my manager’s manager. Yet the policy is that a manager from outside my area of work would conduct the interview. This manager was just promoted from our office to another office in the past few wks. They have only been a manager for a few weeks

 

During the actual meeting the manager was asking why I had not done this piece of work that piece of work etc . So my employer wants to dismiss me for gross misconduct on matters for which I am already in capability & they have taken this stance just when the organisation has been place in Special Measures

 

I’m told that notes if the meeting soon be sent to me to agree or not agree before they either eject to dismiss me or proceed to a disciplinary hearing

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So I had the investigation meeting this afternoon. The manager who conducted the interview, used to sit a few feet away from me up to a wk before I was suspended 2 wks ago . They were in discussions with my manager last wk & have for months had communication with my manager’s manager. Yet the policy is that a manager from outside my area of work would conduct the interview. This manager was just promoted from our office to another office in the past few wks. They have only been a manager for a few weeks

 

During the actual meeting the manager was asking why I had not done this piece of work that piece of work etc . So my employer wants to dismiss me for gross misconduct on matters for which I am already in capability & they have taken this stance just when the organisation has been place in Special Measures

 

I’m told that notes if the meeting soon be sent to me to agree or not agree before they either eject to dismiss me or proceed to a disciplinary hearing

 

Can I check

 

"Already in capability" - does that mean you're on an underperformance action plan?

 

And you have chosen this time to paint a target on your back by criticising your colleagues actions or lack of?

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Can I check

 

"Already in capability" - does that mean you're on an underperformance action plan?

 

And you have chosen this time to paint a target on your back by criticising your colleagues actions or lack of?

 

Oh gosh, yes, this ^^^^^

 

Let me guess. You are already in capability processes and your "defence" has been to tell your manager that it isn't fair because Joe does this and Sally does that.... As a result of which there is now a full investigation into the work of everyone ?

 

That is not a protected disclosure. So your most potent possible defence has almost certainly just flown out of the window. And you may be the architect of your own misfortune, because being in a performance plan only meant you had to improve. But if the team are now in special measures, it would not be unreasonable for the employer to "clear the dead wood" to get out of those measures, and shortcutting a performance plan to dismissal would quite possibly be fair in law - which it otherwise wouldn't have been.

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First things first, when did you inform your manager that there were issues with the signing offs?

 

That time is crucial, as it would point out a bad faith intention.

 

Making a PD in bad faith does not remove your protection (Enterprise and Regulatory ReformAct 2013 as a result of the request of the Shipman Inquiry 2004) )

 

It would definitely reduce your payout

 

From your statement, there seem to be some very few procedure errors on the part of your employer

 

I really don't see that there are significant

 

However, I would suggest that you point it out to your employer

 

It would keep them on their feet and force them to do things the right way

 

My final suggestion is this;

 

(A lot of people might disagree)

 

I strongly believe in cracking a nut with a sledgehammer

 

I would suggest you get a lawyer now!

 

Paying a lawyer, at this stage £500-£1000, could save you months of pain, stress and anguish

 

Your employer seems determined to get rid of you

 

It might be to make you a scapegoat or simply to punish you for making a PD

 

Whatever the reason, you have to make your decision

 

Go down or fight back

 

It is your decision to make

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On the other hand, whingeing is not a protected disclosure.

 

I don't see any procedural errors are all. The employer has suspended you for a potential misconduct which they are investigating. They have asked you to attend an investigation meeting. That's it. Nothing wrong with any of that. But if you have money to burn, by all means get a lawyer.

 

It's going to take a lot more than you have right now to make a case though.

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On the other hand, whingeing is not a protected disclosure.

 

I don't see any procedural errors are all. The employer has suspended you for a potential misconduct which they are investigating. They have asked you to attend an investigation meeting. That's it. Nothing wrong with any of that. But if you have money to burn, by all means get a

 

lawyer.

 

It's going to take a lot more than you have right now to make a case though.

 

Thanks for all your honest comments particularly dandadas . No point sugar coating this car crash of a situation. I will take all remarks under advisement

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If you can get legal advice, the time to get it is when dismissed. If they've made an error that is the only point at which it is actionable - any advice before that is speculation. It is also the only time at which a no win no fee lawyer is going to assess it. They have a useful function, if for no other reason than if they won't touch it you probably don't have much of a case to argue. If there's money to be made, they'll take it! Just be careful what you sign up to if you go down that route. The devil is in the small print.

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I attended the investigatory meeting on 4 June, was told I would get the notes from that meeting within a week. I received the notes for my amendment on 4 July, to be returned as agreed with or not by 11 July.

On 6 July I received another letter from my employer now saying that (because I stated in the investigatory meeting that I required access to the system I use at work to be able to refresh my memory and answer questions they were asking about alleged issues regarding my working dating as far back as October 2017) they would allow me 1 hr supervised access to the system on 12 July at 10am to be immediately followed by a further evidence meeting. My employer has had at least 6 wks to look at my emails and the system and they are offering me 1 hr. Given the issues with the system it will take at least 15 just to get me logged back into the system, plus I would need far more than 1 hr to review my workload that they are alleging I have been negligent with.

Should I be agreeing to accept what I consider to be a disingenuous offer, being used to set me up to fail?

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What are you looking for that isn’t a few specific emails? Which would tak a few minutes to find.

 

A general trawling mission isn’t in order here.

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It’s not just emails I carry 40 cases and my employer is saying that I have mismanaged those cases. They have looked at each case hence should I not have an opportunity to look at the cases.

I’m being accused of GROSS misconduct i.e. my employer should have their evidence and if it’s so gross, why are they allowing me anywhere near their offices. I do not work on Thursdays yet I'm being instructed to attend a meeting today a Thursday

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They don’t have to give you access to anything. They can read the good and the bad without you and draw conclusions. Suggested they are immora in their approach will also get you nowhere.

 

I would go, yes on a Thursday, they don’t have to give you anything so it is at their convenience not yours. At the end of the hour you need to be very specific about how much extra time you need, to do exactly what. Vague requests will get you nowhere.

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