Please help, anyone - OH dismissed

SarEl

pjcee wrote: »

Thanks CountryGuy, but that was not UK, does anyone know if that is how ET would read this - OH has been working up to last Friday, activity reports showed he did not have any breaches after mid Jan, even though he did not know he was being investigated - they did not tell him until March. they knew he breach 'excessive use' rules in december but did not immediately tell him (which the process says they must) and the more serious activity took place after that.

OK, I have been staying out of this because I had nothing to add, but we are going around in circles. And by the way - what do you mean "excessive use" - because that is about the amount of use and not just what it is used for, and your OP said ten minutes here and there.

Cutting to the quick - and speaking in the place of the employer, so sorry, this isn't me!... Your husband has been browsing what he knows to be inappropriate images on my works computer, which is, at the very least, a disciplinary offfence and may be an offence which warrants dismissal. He has been doing this over a lengthy period of time, and may also have been doing it for lengthy periods at a time (excessive use). That is theft - of my time as an employer, because I pay him to work and not to browse the internet for lewd images. That is also a disciplinary offence and may be such to warrant dismiss. And in addition to that, I am entitled to expect better of a senior manager who is supposed to be setting an example to others about their conduct at work, and that is a breach of trust and confidence which may strike at the heart of our contractual relationship, also entitling me to consider dismissal. Any one of these I could consdier dismissing over - all three and I have decided that I have to.

That is the reasoning that the employer is using, in very simple terms. Now, what effect does mitigation have? It does not have much. Because the employer only has to listen to it - they do not have to take it into account. So, back to talking as the employer:

I have listened to what you have to say but I do not find your mitigation acceptable. You have claimed that you were under stress, but you haven't ever raised this with us before. You haven't complained about workload, you haven't had any time off with stress, you haven't asked for help or support. So I don't even know if you are telling me the truth or not, because just about everyone comes here and tells me they are stressed and that excuses what they did. And frankly, I don't care now either, because I don't trust you. I don't trust you to work for me and I don't trust you to set an example to junior staff.

I am not saying that that is what they will say - I am pointing out what they could say. And again, relying only precedent is not reliable at all - it may sway them but it wouldn't necessarily. And it does not have to.

But what you are really interested in is - what would a tribunal say? And that is a lot worse. Because what they will say is very simple - they will not consider mitigation at all, and they will not examine any "precedent" unless you can bring the actual cases - complete and intact - into the tribunal, and not anonymised claims about what might have happened brought by you or the union. Virtually the only circumstances where a tribunal can consider other cases is where two or more people are disciplined for exactly the same thing in exactly the same circumstances. Like two people who commit theft together - one gets off and the other gets sacked. And even then it isn't always cut and dried. Simply "someone else in my opinion got off with something worse" isn't going to cut it in any shape or form.

A tribunal will look at three things. Was your OH guilty or not (or did the employer have reasonable belief to think they were). The answer to that is yes, he is guilty and there is evidence to prove it. They will then also consider whether what he is guilty of and whether dismissal is within the range of outcomes that a reasonable employer would consider". The answer to that is, once again, yes it is. So from an ET point of view, you are screwed on both of those. The third and final test is whether process was followed. There is a slight glimmer here - but it is not a big glimmer and it is not something I would be at all hopeful about. The employer is expected to follow their process - they should have dealt with this behaviour as soon as it came to their attention and not left it. But - and this is why it is a slight glimmer - a small fault in process may not be sufficient to overrule the first two things they decide. And even if it does and they find the process at fault, they then go on to apply two further tests. One is whether the employer would have come to the same conclusion had the process failure not been evident. The answer to that may well be that the employer would still have dismissed, they would have just done it sooner. And then there is something called Polkey - a test that says, even if the employer has acted unfairly in some respects, has the employee acted in such a way as to contribute to their own dismissal. The answer to that is also yes, so they tribunal could, quite lietrally reduce his award to a proportion - or nothing.

Your one real chance here is the appeal. It is the only place that his mitigation - which is truthfully the only thing he has on his side - will ever be considered. If this gets to a tribunal (and I have doubts the union legal advisers would let it - they would realise it has poor prospects of winning) then I hold out only an infintisimal chance of it succeeding as a claim.

pjcee

Thanks SarEl, not nice to hear, but I guess straight talking. Thing is , there have been so many other instances of similar/same/worse behaviour, which have not resulted in dismissal, which is why i am trying to establish, in civil service terms, why this is any different.

We may never know i guess, but so unfair.

SarEl

I understand why you are thinking like this. But the law isn't "fair" - it's definition of fair is entirely different than yours. That is why the employers appeal is key to so much of this. If anyone is going to use your definition of fair, it is them. So other cases of similar/same/worse is subjective - based on what you know - which is incomplete. Lets say that someone else has done exactly the same thing as your husband but has worked there for six months and has a very junior position. They may say that they didn't know they shouldn't look at such images, nobody had told them, and they won't ever do it again now they know. That might be a final warning (probably not I admit - but it could be) because the panel accept that this person didn't know it was wrong. And the harsh reality is that some panels are more understanding, and some panels may have got up on the right side of the bed... it isn't that the person has done something they perhaps ought to be dismissed for, but the decision is that they aren't. That is why the law uses the test of a "reasonable employer" - a notional idea - rather than "this panel". It isn't "fair" I know, but there really isn't a better way of doing it unless the law takes away all discretion from an employer. And if it did that I can guarantee you that it would be worse, because then the (several volumes of) law would specify every circumstances in which an employer is justified to dimiss and the employer would have no choice other than to dismiss every time. I am afraid that means that we leave the discretion with the employer for good reason - but for individuals this may not seem fair or equitable.

pjcee

Well I am struggling to see how someone having sex in the office, a grade higher, could have any more of a reason not to be dismissed.

Nor someone who admitted to using illegal class 1 drugs, which was all in the papers.

the depts own occupational heath consultant has said the behaviour was a known response to dealing with stress - the culture was such that any complaints of too much work was dismissed as whinging, two other similar grades went of sick with stress related to working for the same manager, and OH got work of one of them on top of his own. I can only hope that at the appeal they are able to realise that a 3 month abberation and an inability to admit to being what OH is calling a failure (but got excellent box marking for work to April) is enough for them to consider reversing the decision - but I am not holding my breath.

cit_k

pjcee wrote: »

sniped long post

What can we do? sorry for long post.

Forget about the work place issue for a short while, and ensure he gets medical attention, asap.

Put his health first, then look into the work issue.

Fridge3

pjcee wrote: »

hello sarEL

i think the way this was done (cant ask OH) is that the system makes automatic record of internet usage - times and sites, and he triggered the radar. there are two seperate reports, one between sept to dec then a gap (not sure how long) and then the second report. the second one was done as a deliberate check, so yes they allowed him to do it.

Most companies have IT policy which users click past before logging on. It's mostly ignored but there for the user to confirm the understand the T&C in internet/intranet use and also for the employer to specify what is not allowed. So by accepting those T&C he would be deemed to understand what is (or in this case what is not) acceptable. It's also quite reasonable for an employer to monitor suspected misuse and follow up/review as they appear to have done here.

Fridge3

pjcee wrote: »

why not????

The whole premise of using others' wrongs as a defence/mitigation does not work. I've observed such tactics used in many disciplinary hearings and it's discounted because it's not relevant. Not only that, most who rely on this for a defence aren't prepared for when it's discounted and have little or nothing else to offer at this stage which does little for credibility.

Fridge3

pjcee wrote: »

and if in every case looked at indiviually, the result has not been a sacking apart from this one, is it not reasonable to ask why? otherwise how are we supposed to ensure that there is not something else at play, or that the panel did not just have a bad lunch?

That's why there are appeals procedures to ensure the panel have applied the procedure correctly for the case in hand.

NiallB

Fridge3 wrote: »

The whole premise of using others' wrongs as a defence/mitigation does not work.

Over here in NI it's a popular political pastime and known as 'Whataboutery'

Fridge3

pjcee wrote: »

OH will, I hope I can manage to come through without, we cant afford two lots.

This is for SarEL, and others who understand Eployment law and process etc.

OH spoke to union rep this am. The scenario is this :

There are two Gov Depts - A and B

OH used to be part of A, now in B, but with 'reserved rights' in A. As such he should be treated as still employed in A.

The rules regarding internet misuse are different in each dept, but it now transpires that under either set of rules, viewing the images that my OH did does not constitute Gross Misconduct (this is definite for Dept B and reps view re dept A, dept A seeing this differently)

At hearing, chairwoman presented the folder of precidents they were were going to use to hear the case and said they were Dept B precidents. The Union rep asked for a copy, which he will be sent.

During hearing the Chair commented that OH has been visiting 'illegal' websites (which are, in Dept B, grounds for GM) . Rep got her to clarify and she said o I didn't mean illegal. This leads the rep to believe they were using Dept B precidents and rules to hear a case that should have been under Dept A rules.

Rep is saying that even under Dept A rules, he can produce precidents which show that GM charges are only applied to hard-core pornography, and even when this is proved dismissal is only used when the material viewed was illegal.

And there is the issue of not bringing the first report of misuse to his attention.

finally, the first report of innaproprate used (level 1 misconduct) was complete and ready to submit OH LM on 17th Dec. First OH knew of this was in March. There is a second report from late dec to feb during which the other images were viewed, added as a supplimentary report to the first. No explanation why the first report was not submitted to OH when it was ready in Dec.

The rep is going to the union legal team for further advice, but if we are not able to win the appeal, are there now grounds for going to ET, OH hopes that if he can get treatment for depression he may be better placed to got to ET

Reserved rights relate to personnel/contractual items such as pay, leave, pension etc. Departmental T&C's with regard to internet use apply from the employing dept, ie B. Civil Service will almost certainly have a method of users accepting internet policy when they logon.