Can You Have A Disciplinary Hearing And Not Have The Facts?

[interestrateripoff]

Can't mention too many details, but close relation (not me) is facing disciplinary action at work for gross misconduct the letter states they could face dismissal I'm guessing that this is in the letter as they have to state what the worst outcome is for legal reasons. For obvious reasons I'm being vague so not too many details.

My query is how strong does the evidence have to be, especially if worst happens and you have to claim unfair dismissal?

(Edit removed some information.)

There are other issues with the "evidence" as I don't think they have done a good job of critically reviewing the evidence. The narrative is clearly the relative failed, but that's if you ignore everything in the file that contradicts this narrative. Obviously this is my opinion but I've tried reading it in an objective fashion, yes I admit I have my bias as I don't want the relative face the worst outcome of losing their job, but looking at the evidence it seems like they just want a scapegoat and have gone about it in a totally half ar$ed way.

I feel the case is weak but I've never been involved in anything like this before so how strong does the evidence have to be for an employer to discipline someone. Yes the union is involved and I'm hoping they aren't useless in this regard.

Can an employer simply ignore facts and stick to their guns and discipline you, just to suit their version of events?

Once they have started proceedings against you can they move the goalposts once they've told formally we are going to discipline you because of X or Y can they suddenly change tack and go sorry we really mean A, B and C?

I have to say I'm quite worried about this, as they have mortgage/kids etc... and naturally you start to fear the worse so anyone been through this?

Just hoping for some constructive opinion.

[porca misèria]

Yes the union is involved and I'm hoping they aren't useless in this regard.

Well, they're almost certainly going to be more useful than advice on a random internet forum.

Can an employer simply ignore facts and stick to their guns and discipline you, just to suit their version of events?

Once they have started proceedings against you can they move the goalposts once they've told formally we are going to discipline you because of X or Y can they suddenly change tack and go sorry we really mean A, B and C?

Yes, if they can get away with it. Your best chance is to have an insider (to "the system") on your side. The most likely candidates are a union rep or a lawyer, and either way you take pot luck as to whether they're any good.

[Bossybabe]

1. The test in disciplinaries is normally on 'balance of probabilities', NOT 'beyond reasonable doubt'. It's best to establish that at the outset of the hearing.

2. Most union reps are hopeless at supporting staff in serious disciplinary cases. Best to use a friend with employment law knowledge and experience or a full time officer of the union.

3. Papers should be available to the subject before the hearing. Right of appeal must be outlined in the written outcome of the hearing.

4. Employee must be given the right to be accompanied BT union rep or friend 'not acting in a legal capacity.

5. Don't let them get away with changing tack. Ask for an adjournment and more time to prepare a case should employers try it on.

Good luck.

[SpectrumFX]

They can do what they like, as long as they follow their internal written disciplinary procedures. First step is to get a copy of those procedures and try to demonstrate that they haven't been followed (they often aren't). Next is to launch a grievence procedure because he's been misstreated and as a result no longer has confidence in the management, then claim (or threaten to claim) unfair dissmisal. Then he gets a payout (or not) and another job.

[interestrateripoff]

Well, they're almost certainly going to be more useful than advice on a random internet forum.

Particular this one?

They can do what they like, as long as they follow their internal written disciplinary procedures. First step is to get a copy of those procedures and try to demonstrate that they haven't been followed (they often aren't). Next is to launch a grievence procedure because he's been misstreated and as a result no longer has confidence in the management, then claim (or threaten to claim) unfair dissmisal. Then he gets a payout (or not) and another job.

On that front there is an even bigger problem with this case than merely following written procedures or poor quality evidence, they dropped the ball in a potentially catastrophic way, which could have cost jobs and fines. Can't reveal what but it was unbelievable incompetence by HR, unfortunately the relative failed to make the most of the opportunity presented too honest for their own good, at worst the whole case would have had to be dropped because of this incident.

[Snafu]

If it was me I would make sure to highlight these texts to them before the actual hearing.

That might cancel out the need for the hearing. Sow some doubt.

If you believe the outcome (gross misconduct) is wrong, then you take it to tribunal. If I remember rightly (please seek advice on this I am an amateur) - the tribunal can fine the employer, but not much else (you can't get your job back afaik). So, basically, you want to stop this going to a disciplinary hearing ideally because if they are hell bent on getting rid - a company can most definitely do that.

If you/this person resign ahead of the hearing - I guess they could make a case for constructive dismissal if they refuse to accept/add in the texts as part of the fact finding for the disciplinary hearing. Again seek advice I am an amateur. I've been on the other end once so to speak so my knowledge is definitely not great/solid etc.

[Snafu]

Oh and make sure that HR has followed the correct procedures (internally/externally), has enough time been given for the hearing (I don't think it's specified in law etc) but I'm pretty sure 5 days is seen as "sufficient/adequate". If it's one day it's probably not.

[SarahBell]

High up union rep needed.

[SHERWICK]

Someone on another thread said to contact ACAS for good advice when you're about to be made redundant.

Maybe they can assist with this too?

If not, then definitely get an employment lawyer involved.

[interestrateripoff]

They spoke to Union rep yesterday and it would appear if they can they are going to be dismissed.

Very worrying time for them, although after the union rep saw some information they feel the case isn't that strong.

Unfortunately if management want you out, they are more than likely to get you.

[shipbuilder]

Unfortunately if management want you out, they are more than likely to get you.

I don't think that's necessarily the case, unless they've followed their own written procedures to the letter. As someone else has mentioned, this does not always happen.

In my anecdotal experience, it very rarely happens, usually because a manager has decided that in their own arrogance that they know best and HR are too spineless to put them right.

[SHERWICK]

They spoke to Union rep yesterday and it would appear if they can they are going to be dismissed.

Very worrying time for them, although after the union rep saw some information they feel the case isn't that strong.

Unfortunately if management want you out, they are more than likely to get you.

Contact acas and a lawyer immediately.

[SHERWICK]

I agree, I recommended contacting ACAS on the other thread and they were apparently very helpful.

I never knew they did that satch as always thought that acas was for big companies, that's excellent advice. Many thanks.

[geezer466]

They spoke to Union rep yesterday and it would appear if they can they are going to be dismissed.

Very worrying time for them, although after the union rep saw some information they feel the case isn't that strong.

Unfortunately if management want you out, they are more than likely to get you.

I was a Trade Union convener on a large retail distribution site for a number of years and sat in dozens of disciplinary hearings.

My experience is if the Firm has decided to dispense with a persons services then they will do so no matter how strong (or not) the evidence will be.

The person will be permitted an avenue of appeal following the finding and the manager hearing this has to be different from the one who originally heard and decided on the matter.

Although they call this an appeal is is simply a rubber stamp exercise to comply with employment legislation. Invariably the two managers will have discussed the case (even though they are not supposed too) (and reached the final conclusions) before actually hearing any representation or evidence.

Suck it up it's just how employment protection legislation works in the UK.

Yes persons can of course take a case to tribunal and in a lot of cases may win a few Thousand either agreed before or awarded by the court. Employers look on this as a normal business cost and budget accordingly, in many cases they still feel it is a price worth paying if they want the individual out.

In a few cases when I knew the outcome was certain sacking I advised the member to resign before the hearing took place, this at least gave them the opportunity to say to their next employer that they had not been dismissed. These cases usually involved possession or use of drugs or alcohol in the workplace. It used to be a picture when I used to walk into the hearing alone and place the resignation letter on the table stopping their fun and games with a certain sacking.

OP I notice you have been very silent on the facts behind the case and what the persons is alleged to have done albeit it is viewed at gross misconduct.

First call is :

1. Review the persons employment contract, staff handbook, site agreement to establish exactly what constitutes 'gross misconduct'.

2. See how this sits with what the person is alleged to have done (not done).

Once you have these facts you should make a quick assessment on to whether the person is actually guilty of what they allege.

Once you reach that conclusion then you can build a strategy to defend the charges.

If there is reasonable doubt try and get a full time union officer involved and to sit with the chap at the hearing. If this is not possible then the persons can employ a specialist solicitor and ask him/her to attend. The firm will cry blue murder but statute allows for persons to attend with whomever they want.

If it is clear the person is guilty of the charge then some sort of rearguard mitigating action to see if the employer will consider a penalty short of dismissal may be worthwhile particularly if the persons has a skill/training/experience which will be difficult to replace.

Probably not what you want to hear but employers hold all the cards, they always have and pretty much always will.

[sleepwello'nights]

Probably not what you want to hear but employers hold all the cards, they always have and pretty much always will.

You might find it useful to look at some Court of Appeal decisions on Bailii (England and Wales Court of Appeal (Civil Division) Decisions. Reading through the transcripts of appeals against Employment Tribunal decisions should give you a good idea of how tribunals reach their decisions and the precedents the Appeal Court judges are guided by to review the decision.

Work backward from these and you can see how to present the facts to support your case at the employers disciplinary hearing. The Bailii transcripts will also give you an insight into the process the employer has to follow to comply with employment legislation.

[Bloo Loo]

A relative of mine was in a similar situation.

I read the "evidence" most of which was hearsay.

To my surprise, the person who was very much involved was the person running the hearing. I prepared a written statement for my relative.

The person read the "charges" at the hearing, based on about 20 lines of conversation at a "trap" meeting after the event.

I advised my relative to simply read from the statement, and refer any questions to it,

The first "witness" appeared and read the "evidence"...the "judge" asked no futher questions and gave my relative no opportunity to ask any either.

She began to read her statement, but was told repeatedly to stop...It took her 3 hours to read it...it was about 3 A4 sheets....the "judge" wasnt interested in the statement, mainly because it was dead easy to see where it was going....that managemeent including him had railroaded this issue to cover weak and incompetent management.

The relative stuck to her guns and all "charges" were "dropped", yet she was still told she was being warned (written) for her misconduct.

The next step was HR appeals, but she was threatened by the manager ( the Judge) that talking to HR in office hours was yet another disciplinary.

This was about 18 months ago, and whilst the relative hasnt been at work much since due to stress, we have a meeting with senior HR this coming week...This time, the relative will have a proper friend involved.....ME.

HR sent their Ts and Cs.....they have clearly breached their own guideline....I feel a kind of Victory coming on.

The "judge" and the "witness" are both still employed....but whenever a Solicitor called for my relative ( on another case entirely) it was widely reported they were "pooping" themselves.

They KNOW they did wrong...I will fight these bullies.

[The Ayatollah Buggeri]

Unfortunately if management want you out, they are more than likely to get you.

And I suspect that in some circumstances they'll make a strategic decision to the effect that having to shell out a few grand at an employment tribunal is the lesser of two evils.

I've experienced this from the other side of the fence - running a cinema with a totally unreliable and incompetent duty manager. In her first week she made several serious errors, including selling tickets for Crash (the mid-1990s Canadian film about perverts who are turned on by car crashes, not the more recent Hollywood film of the same name) to dozens of kids who were clearly under 18, leaving the fire exit doors chained up after customers were in the building, failing to carry out the fire alarm check at the start of her shift ... you name it. When I confronted her, she gave me a load of aggravation, the gist of which was that she claimed not to have been told that she had to do the things she failed to do (untrue), and the next day rang in sick. The day after that a doctor's note arrived in the post, not only signing her off for two weeks but saying that she should not be required to work evenings and weekends, either (essential, in a cinema).

After two months of this crap I was instructed by the chain's head office to dismiss her for gross misconduct the second she made even a minor mistake. In fact, when the mistake came, it was not a minor one: she told the projectionist to run an 18-certificate trailer before a 12-certificate film, and refused to listen when he pointed out that we weren't allowed to do that. With the aid of a no win/no fee lawyer, she did eventually take the company to a tribunal, claiming in effect that we hadn't dotted the Is and crossed the Ts in the way we sacked her. She was awarded £2.5k, which my boss declared to be money well spent given what she'd already cost us in disrupted business and had the potential to cost us with the mistakes she was making.

[Kurt Barlow]

And I suspect that in some circumstances they'll make a strategic decision to the effect that having to shell out a few grand at an employment tribunal is the lesser of two evils.

I've experienced this from the other side of the fence - running a cinema with a totally unreliable and incompetent duty manager. In her first week she made several serious errors, including selling tickets for Crash (the mid-1990s Canadian film about perverts who are turned on by car crashes, not the more recent Hollywood film of the same name) to dozens of kids who were clearly under 18, leaving the fire exit doors chained up after customers were in the building, failing to carry out the fire alarm check at the start of her shift ... you name it. When I confronted her, she gave me a load of aggravation, the gist of which was that she claimed not to have been told that she had to do the things she failed to do (untrue), and the next day rang in sick. The day after that a doctor's note arrived in the post, not only signing her off for two weeks but saying that she should not be required to work evenings and weekends, either (essential, in a cinema).

After two months of this crap I was instructed by the chain's head office to dismiss her for gross misconduct the second she made even a minor mistake. In fact, when the mistake came, it was not a minor one: she told the projectionist to run an 18-certificate trailer before a 12-certificate film, and refused to listen when he pointed out that we weren't allowed to do that. With the aid of a no win/no fee lawyer, she did eventually take the company to a tribunal, claiming in effect that we hadn't dotted the Is and crossed the Ts in the way we sacked her. She was awarded £2.5k, which my boss declared to be money well spent given what she'd already cost us in disrupted business and had the potential to cost us with the mistakes she was making.

Sounds quite reasonable.

In contrast here in Australia it seems you can recieve a formal written warning from the Director General (Gubbermint) of your Department for 'challenging your line manager' as a result of that manager (power crazed control freak) riding roughshod over my contratual entitlements and then pointing this out to them politely.

For the next 10 days I shall play House Pom after which I pass a date when all elements of Australian employment law are applicable

[geezer466]

And I suspect that in some circumstances they'll make a strategic decision to the effect that having to shell out a few grand at an employment tribunal is the lesser of two evils.

I've experienced this from the other side of the fence - running a cinema with a totally unreliable and incompetent duty manager. In her first week she made several serious errors, including selling tickets for Crash (the mid-1990s Canadian film about perverts who are turned on by car crashes, not the more recent Hollywood film of the same name) to dozens of kids who were clearly under 18, leaving the fire exit doors chained up after customers were in the building, failing to carry out the fire alarm check at the start of her shift ... you name it. When I confronted her, she gave me a load of aggravation, the gist of which was that she claimed not to have been told that she had to do the things she failed to do (untrue), and the next day rang in sick. The day after that a doctor's note arrived in the post, not only signing her off for two weeks but saying that she should not be required to work evenings and weekends, either (essential, in a cinema).

After two months of this crap I was instructed by the chain's head office to dismiss her for gross misconduct the second she made even a minor mistake. In fact, when the mistake came, it was not a minor one: she told the projectionist to run an 18-certificate trailer before a 12-certificate film, and refused to listen when he pointed out that we weren't allowed to do that. With the aid of a no win/no fee lawyer, she did eventually take the company to a tribunal, claiming in effect that we hadn't dotted the Is and crossed the Ts in the way we sacked her. She was awarded £2.5k, which my boss declared to be money well spent given what she'd already cost us in disrupted business and had the potential to cost us with the mistakes she was making.

Did you not employ her under some sort of probationary period? Usually at least 6 Months and easy as pie to dispense with services if they don't shape up.

She must have proceeded the tribunal claim on the basis of dismissal for health related facts or discrimination of some sort? With less than 2 years service? She wouldn't have had a usual tribunal avenue anyway..

Used to be 1 year but the present government upped the time frame.

[Bloo Loo]

And I suspect that in some circumstances they'll make a strategic decision to the effect that having to shell out a few grand at an employment tribunal is the lesser of two evils.

I've experienced this from the other side of the fence - running a cinema with a totally unreliable and incompetent duty manager. In her first week she made several serious errors, including selling tickets for Crash (the mid-1990s Canadian film about perverts who are turned on by car crashes, not the more recent Hollywood film of the same name) to dozens of kids who were clearly under 18, leaving the fire exit doors chained up after customers were in the building, failing to carry out the fire alarm check at the start of her shift ... you name it. When I confronted her, she gave me a load of aggravation, the gist of which was that she claimed not to have been told that she had to do the things she failed to do (untrue), and the next day rang in sick. The day after that a doctor's note arrived in the post, not only signing her off for two weeks but saying that she should not be required to work evenings and weekends, either (essential, in a cinema).

After two months of this crap I was instructed by the chain's head office to dismiss her for gross misconduct the second she made even a minor mistake. In fact, when the mistake came, it was not a minor one: she told the projectionist to run an 18-certificate trailer before a 12-certificate film, and refused to listen when he pointed out that we weren't allowed to do that. With the aid of a no win/no fee lawyer, she did eventually take the company to a tribunal, claiming in effect that we hadn't dotted the Is and crossed the Ts in the way we sacked her. She was awarded £2.5k, which my boss declared to be money well spent given what she'd already cost us in disrupted business and had the potential to cost us with the mistakes she was making.

as it was less than a year of employment, you could have sacked her for no reason at all.

[sleepwello'nights]

And I suspect that in some circumstances they'll make a strategic decision to the effect that having to shell out a few grand at an employment tribunal is the lesser of two evils.

Quite unusual to lose if the facts are as straightforward as you set out. Despite popular misconception about tribunals falling over themselves to side with the employee the vast majority of decisions find the employer to have acted reasonably. In 2011/12 12% of complaints from employees were successful.

The Department of Justice maintain detailed statistics.

[Kurt Barlow]

A relative of mine was in a similar situation.

I read the "evidence" most of which was hearsay.

To my surprise, the person who was very much involved was the person running the hearing. I prepared a written statement for my relative.

The person read the "charges" at the hearing, based on about 20 lines of conversation at a "trap" meeting after the event.

I advised my relative to simply read from the statement, and refer any questions to it,

The first "witness" appeared and read the "evidence"...the "judge" asked no futher questions and gave my relative no opportunity to ask any either.

She began to read her statement, but was told repeatedly to stop...It took her 3 hours to read it...it was about 3 A4 sheets....the "judge" wasnt interested in the statement, mainly because it was dead easy to see where it was going....that managemeent including him had railroaded this issue to cover weak and incompetent management.

The relative stuck to her guns and all "charges" were "dropped", yet she was still told she was being warned (written) for her misconduct.

The next step was HR appeals, but she was threatened by the manager ( the Judge) that talking to HR in office hours was yet another disciplinary.

This was about 18 months ago, and whilst the relative hasnt been at work much since due to stress, we have a meeting with senior HR this coming week...This time, the relative will have a proper friend involved.....ME.

HR sent their Ts and Cs.....they have clearly breached their own guideline....I feel a kind of Victory coming on.

The "judge" and the "witness" are both still employed....but whenever a Solicitor called for my relative ( on another case entirely) it was widely reported they were "pooping" themselves.

They KNOW they did wrong...I will fight these bullies.

Good luck with that BL. I like to hear about people fighting back against pyschopathic management.

I self represented and represented a colleague after a sham redundancy. I cannot describe the pleasure derived from cross examining my former employers witnesses (management and HR) in front of an audience

[The Ayatollah Buggeri]

Did you not employ her under some sort of probationary period? Usually at least 6 Months and easy as pie to dispense with services if they don't shape up.

Not if they're covered by a doctor's note.

The tribunal did effectively decide that morally, we were in the right (by awarding her such a low payout), but (the situation was then - not sure if it still is now) if you're covered by a medical certificate stating that there's something wrong with you while in the workplace, that effectively means that no disciplinary procedure is legally valid.

[interestrateripoff]

As I feared it's a bit of a stitch up, although I've managed to throw a spanner in the works as clearly they had turned up to dismiss them there and then.

Even the union rep said it's normal for a decision there and then and they've had to retire to "think" about it, so the clock is ticking. Very rarely do they need "thinking" time.

It's a pure witch hunt so they can blame someone and tell the funders looker we've sacked someone to hide failures in their management and running of the business.

So they might get another weeks pay out of it.

[SEW247]

As another poster said, get your relative to call ACAS.

In my situation they were extremely knowledgable (was about redundancy) and very helpful. Saved us having to go to a lawyer which would have been eye wateringly expensive.

Theyve got nothing to lose (except annoyingly the cost of e 0845 number)