Legally is an employer allowed to.....

sho_me_da_money

....completely butcher up a disciplinary procedure (major errors) and be allowed to take steps in rectifying their mistakes leading up to the hearing? And then go on to dismiss the employee?

Furthermore, if an appeal was raised to show the abundance of errors and was additionally pursued at tribunal, is the employer likely to win on the grounds they took reasonable steps to resolve their mistakes?

Also, I would be grateful if anybody could point me to some relevant case-law (prefereably recent cases) where a tribunal has held against an employer for not following procedure.

Many thanks,

mynameistallulah

sho_me_da_money wrote: »

....completely butcher up a disciplinary procedure (major errors) and be allowed to take reasonable steps in rectifying their mistakes leading up to the hearing? And then go on to dismiss the employee?

Furthermore, if an appeal was raised to show the abundance of errors and was additionally pursued at tribunal, is the employer likely to win on the grounds they took reasonable steps to resolve their mistakes?

Also, I would be grateful if anybody could point me to some relevant case-law (prefereably recent cases) where a tribunal has held against an employer for not following procedure.

Many thanks,

You have asked this several times before, and the answer is still the same.

Yes, they are allowed to remedy errors in the disciplinary procedure. If, when they follow the correct procedure the outcome is within the band of reasonable responses, then the dismissal will be fair.

marybelle01

Yes. Yes. Yes. No.

And did you do it?

sho_me_da_money

mynameistallulah wrote: »

You have asked this several times before, and the answer is still the same.

Yes, they are allowed to remedy errors in the disciplinary procedure. If, when they follow the correct procedure the outcome is within the band of reasonable responses, then the dismissal will be fair.

Ok this is fine and there is no problem however, the matter is as follows:

1. The company has pre-judged the employee by inviting her to a disciplinary at 17:30 on a Friday for a disciplinary hearing to take place on the following Monday without allowing her reasonable time to build a case.

2. The employee was not afforded an opportunity to put forward her response to the allegations. No investigation meeting took place prior to the original letter being sent

3. The original letter made 2 separate claims - The first with respect to a bullying and harrassment allegation that would handled in line with the companys disciplinary procedure and the second with respect to a performance related matter involving an incident where the employer stated they would like to help the employee by putting a performance plan in place.

4. The employee appointed a Unison rep and it was from this point onwards that the employer decided to attempt and follow the correct procedure. The employer invited the employee to an investigation meeting.

5. Following the investigation meeting, the employee was sent the EXACT original letter with no reference to the responses she made to the allegations in in the investigation meeting. The only thing that had changed in this letter was the date and time.

6. A disciplinary hearing took place between the employer, employee and unision rep. In this meeting, the employer produced a number of witness statements that were not made available to the employee. On this basis, the meeting was adjourned.

6. During the time to consider the statements, the employee consulted a medical expert where she was diagnosed and assessed. The employee was signed off for 4 weeks.

7. During this 4 week leave, the employer compiled a new disciplinary letter to the employee adhering to the correct format, i.e. allegations, rights, etc. AND made a significant change. The employer decided to change the severity of the performance related matter by treating it as an official allegation that would now be dealt under the companies disciplinary procedure.

NOTE: No opportunity to improve on this matter (i.e. performance plan) was given to the employee as described in the original letter.

8. The medical expert wrote a letter to the employer stating that their most recent correspondence was very inappropriate, untimed, insensitive and unfair to the employee during the time of her recovery. She was signed off for an additional 2 weeks

9. The employee was contacted again by the employer to confirm the return to work date.The employee responded.

10. The employer replied and informed the employee that she has now been suspended on full pay and will not be required to return to work until further notice.

That's pretty much a summary of what has occured.

I have been informed by a couple of HRD's that the company is taking advice from a professional and will proceed with caution AND dismiss the employee. However, in light of the abundance of procedural cok-ups from start to finish, they are very likely to get shredded at tribunal should the matter reach that stage. They will have been informed of this by their advisors and it would be in their best interests to settle out of court as any reward might be quite substantial for a person with 5 years of employment and an unblemished record.

As much as I respect the HRDs, I would hate to pursue on their advice alone. Rather. I would be grateful for your opinions and weigh up the pros and cons before proceeding with the next course of action.

Thank you.

Pricivius

My view would be that you are premature in considering a Tribunal Claim at this stage.

The employer can (and it looks like they will) rectify any errors at or before appeal.

There is nothing you can do if they do this. You can feel suitably aggrieved that they messed it up and then sorted it out but the fact is, they sorted it out and the matter was dealt with properly. If they get everything right in the end, what loss are you claiming for? What loss has been suffered? You can jump up and down at the injustice of meetings convened late and letters missing details, but providing you were given everything you needed and meetings were adjourned to allow for consideration etc..., what are you claiming for? As long as they had everything in place before the decision was made or the appeal was heard, then providing they can show they have acted within the bands of reasonableness, they are in the clear.

See how it pans out - you have three months from dismissal to consider and make a claim, so try and make the best of the situation you are in and get the best resolution you can.

marybelle01

Good luck with that. And in relation to point 8 - it isn't the role of "medical experts " to dictate to employers what they should or shouldn't do. They don't have facts - only their clients opinion.

sho_me_da_money

Pricivius wrote: »

My view would be that you are premature in considering a Tribunal Claim at this stage.

The employer can (and it looks like they will) rectify any errors at or before appeal.

There is nothing you can do if they do this. You can feel suitably aggrieved that they messed it up and then sorted it out but the fact is, they sorted it out and the matter was dealt with properly. If they get everything right in the end, what loss are you claiming for? What loss has been suffered? You can jump up and down at the injustice of meetings convened late and letters missing details, but providing you were given everything you needed and meetings were adjourned to allow for consideration etc..., what are you claiming for? As long as they had everything in place before the decision was made or the appeal was heard, then providing they can show they have acted within the bands of reasonableness, they are in the clear.

See how it pans out - you have three months from dismissal to consider and make a claim, so try and make the best of the situation you are in and get the best resolution you can.

Thank you for this advice.

I was told that they are allowed to take reasonable steps in rectifying their errors however, there seems to be a strong case where it can be shown this case was unbias towards the employee and a pre-determined decision was set until a unison rep became involved.

One can argue they were looking to dismiss the employee from the get-go and irrespective of the attempt in reversing the procedural cok-ups, they achieved the same net result.

Again, I can't say for sure but I am merely seeking your expert advice.,

Thank you again.

sho_me_da_money

marybelle01 wrote: »

Good luck with that. And in relation to point 8 - it isn't the role of "medical experts " to dictate to employers what they should or shouldn't do. They don't have facts - only their clients opinion.

The letter wasnt a dictation. It was merely a professional opinion that the medical expert felt relevant to inform the employer about, in the best interests of the patient. She could very well have topped herself.

They dont have facts but they do have the patients best interests in mind and their expert knowledge in assessing and diagnosing the cause and effect of any conditions that may exacerbate the patients health.

This note and expert opinion serves as witness evidence in support of the employee should it come into question at a later date.

Pricivius

sho_me_da_money wrote: »

...

One can argue they were looking to dismiss the employee from the get-go and irrespective of the attempt in reversing the procedural cok-ups, they achieved the same net result.

...

I can see what you're saying here, but simply because there is a suggestion that the decision is premeditated, doesn't mean the decision wasn't within the band of reasonable responses.

Let's face it, I would be surprised if the majority of dismissals are not in the mind of the employer at the outset of a disciplinary process, but this does not make the dismissal unfair, providing they consider all the evidence put before them during the process and the decision in within the band of reasonableness.

For example, if someone turns up at work drunk, crashes a fork lift truck in the depot and throws up over the company's top client, the company will suspend them and commence the disciplinary process. Are you telling me the decision to dismiss is not largely a fait accompli? Of course it is, but as long as the company follow procedure (by appeal if not before) and consider any evidence raised in meetings, dismissal must be within the band of reasonable responses.

sho_me_da_money

Pricivius wrote: »

I can see what you're saying here, but simply because there is a suggestion that the decision is premeditated, doesn't mean the decision wasn't within the band of reasonable responses.

Let's face it, I would be surprised if the majority of dismissals are not in the mind of the employer at the outset of a disciplinary process, but this does not make the dismissal unfair, providing they consider all the evidence put before them during the process and the decision in within the band of reasonableness.

For example, if someone turns up at work drunk, crashes a fork lift truck in the depot and throws up over the company's top client, the company will suspend them and commence the disciplinary process. Are you telling me the decision to dismiss is not largely a fait accompli? Of course it is, but as long as the company follow procedure (by appeal if not before) and consider any evidence raised in meetings, dismissal must be within the band of reasonable responses.

Very true sir but your example case and decision would hold up as the employee is clearly guilty of those actions. He was drunk, he did crash and he did throw-up on someone.

In this case, the employee is NOT guilty and the company has failed to offer her a fair and reasonable chance to defend herself because the points she has raised have been dismissed without investigation (well intially).

I absolutely agree with you where you say the liklihood of these decisions are pre-determined in the mind. However, in the real world, they have to follow a law and procedure where they offer the defendant a fair trial. Now, in many situations the employee has no chance in proving the intention of an employer. However, in this particular situation, dont you think the employer has shown enough rope for the employee to demonstate a case where it could be proven that they were unbias, unfair, followed a pis-poor (illegal) procedure and had predetermined the decision from the outset?

marybelle01

You just don't tet it. In the real world this isn't a trial - it is a disciplinary hearing and the employer is allowed to correct any mistakes they make, and you are assuming they will get "shredded" in a tribunal when in the real world all likelihood is that they will not. The problem is that the real world you think exists doesn't exist. Employers are not held to the same standards as criminal cases.