Goal posts changed in a disciplinary investigation

susec`

Can anyone tell me whether there are any rules or guidance on the conduct of an investigatory hearing for disciplinary action. I was told the investigation was for 3 things. At my hearing it turned out to be 4 things. When I got the report, the witnesses had referenced lots things which had occurred during the 18 months prior to the investigation dates. Although their interviews were before mine, I was not asked about anything before the specified dates. None of the prior incidents went to any kind of hearing. Some were addressed informally, but not readdressed.


So my question is: can they do this??? It seems, prima facie to be ridiculous that I am suddenly facing dismissal when, for a start, I've had no opportunity to have my side heard! This couldn't happen in a court of law, could it?


Recently I was pulled up for some serious errors, which I made after I got into a state after being accused of causing a colleague to be off sick for 10 months. All I did was run out of the office because she sprayed aerosol and I react badly to it. I was being asked to account for my actions, but the whole thing was very uncomfortable and went on for weeks without the meeting happening. I have felt bullied for a long time - there is a reason for this very probably the case. And this disproportionate action against me, for something I was witnessed to have done by my manager.
Over these errors, which I did make but I was under a lot of pressure, I was invited to a disciplinary investigation. One of the errors I have complete evidence that it was a unfortunate mishap and nothing I had intended, and I hadn't left my duties unattended nor did anyone not know where I was. The other two I am ashamed of and have apologised for, one for shouting at another member of staff (one sentence immediately retracted, and bountifully apologised for afterwards) and a procedural error that resulted in no harm to anyone.
None of these alone, or as a group, would result in dismissal, especially as I have witnesses.
The 4th one, is a matter of judgement but is in line with current practice. They didn't exactly say how they considered it fell under the stated concerns being investigated. But as I had no prior warning I wasn't able to provide details.


But then the others..... Dozens. At least 1/2 untrue. Like using a phone all the time, which doesn't even get signal, thus easy to disprove. Others are related to my mental health condition, such as forgetting things 2 days before I went off ill, then being called a liar. They say they wanted to demonstrate that my recent behaviour was an on-going problem. But they've only picked times when I was becoming unwell to compare against. They've ignored the months of good work I've done. And as I've never had an appraisal or regular supervision during the periods where I've been well, the good stuff has all been missed.


I feel like this is a stich-up. I've never had *my* injury - asthma which has caused me quite a few problems - acknowledged, written down or even mentioned to the other colleague. So one-sided; seemingly I don't count.


So can they suddenly move the goal posts? Is this legal? It's definitely not fair! I have the union looking into this, but I can't find any advice online, so I'm here! To ask you guys!


Thanks, in advance.

Gavin83

How long have you worked there for?

sangie595

They haven't moved the goalposts. It's an investigation. In investigations other things come up. Other things have come up. All of which, taken together, appear to paint a rather poor picture of you as someone who cannot do their job and cannot get on with others in the team. Based on your version of events.

And I must disagree with your assessment. The definition of an "error" is "an unfortunate mishap" - deliberate actions aren't errors, but things don't have to be deliberate to be serious. You shouted at a member of staff - apology or not that is serious and you could be dismissed for that on its own. And whether or not there was (in your opinion) harm, a procedural error is something that shouldn't happen. And since you admit to all of these things, witnesses are not relevant - their opinion of how serious these things are, your opinion of how serious these things are, neither are relevant. The employers opinion of how serious these things are is the only measure that counts.

"Your side" of things is what the disciplinary hearing is for. The investigation decides there is a case to answer, the hearing gives you a chance to answer it.

I'm not seeing anything disproportionate in what you have said here .

Crazy_Jamie

I agree with sangie, but I will also add that from what you've said it doesn't sound like you're being disciplined directly for these additional matters, more that they're being used as background to inform a potential sanction. There's nothing wrong with that. It's often considered to be relevant that an employee has no disciplinary history, but equally if there are previous matters that may also be relevant. You say they've ignored the months of good work, but normally in such matters employees are encouraging employers not to ignore the years of good work. In such circumstances a number of incidents in the past can be relevant.

FBaby

It doesn't look good at all from what you have written. You seem to acknowledge quite a number of issues, but think they should be excused because of your being ill. Then you seem to think that these should be counter-balanced with the fact that you do a good job at other times.

It doesn't work like that. You are expected to do a good job at all time and to NEVER do the things you are acknowledging to have done.

The accumulation of issues - even if as one offs, they could be excused with actions put in place to ensure it won't happen again - is enough to dismiss someone.

Undervalued

FBaby wrote: »

It doesn't look good at all from what you have written. You seem to acknowledge quite a number of issues, but think they should be excused because of your being ill. Then you seem to think that these should be counter-balanced with the fact that you do a good job at other times.

It doesn't work like that. You are expected to do a good job at all time and to NEVER do the things you are acknowledging to have done.

The accumulation of issues - even if as one offs, they could be excused with actions put in place to ensure it won't happen again - is enough to dismiss someone.

I totally agree plus I rather suspect it will turn out that the OP has been employed for less than two years.

If that is so it makes it all entirely moot........

jessex1990

It doesn't read good for you, but as long as you aren't in your probation period, found to be gross misconduct and this is your first disciinary you may just get a warning and possibly a list of things they want you to improve upon.

I question whether you are well enough to be in work at the moment, see a doctor and be truthful about problems you have been having. They might want to put you on or change medication

TBagpuss

A disciplinary is not a court of law, an the same rules don't apply. The employer should have a fair process, and it sounds as though you have had the opportunity to put your side of things.

It's also not a 'tit for tat' game. Your asthma not being taken into account by other workers doesn't cancel out you doing something which impacted another worker's health.
Simialrly, your having been unwell doesn't mean that your employer can't take into account your behaviour during those periods.Even if your mental health issues (or asthma) are significant enough to be classed as a disability, your employer only has to make 'reasonable adjustments', they are not expected to ignore any dosciplinary issues altogether.

Shouting at a co-worker is a pretty serious matter even in isolation and even if you apologised immediately.

Making mistakes / errors may be a disciplinary issue depending on the nature of the mistake.

Most formal disciplinary processes have an appeals process, which you would normally be told about when you are told the outcome of the investigation. S if the outcome is that you are dismissed, you may be able to appal. However, the appeal may come to the same conclusion.

susec`

That's complicated, due to a previous case that was settled whereby they gave me a job and then took it away based on disability, which was easy to prove. I will have worked in this particular job for 2 years on Thursday.

susec`

Ok, that helps me brace myself for the conclusion. Is it "fair" to interview witnesses then not present them to me to comment on after the event?


And people mention "reasonable adjustments". I am in the process of raising a complaint against them for ignoring the Dr's advice and putting in writing that I'm not willing to comply with reasonable adjustments, that ask me to break the EWTD. I can't work this illegal pattern due to my medication. They removed most of my reasonable adjustments and tried to impose others which were of completely no use to me and not in line with the occy health guidance.


I am trying to be very careful with what I say, here. For obvious reasons. The incident with my colleague was no more than me leaving a room, without saying anything. It took around 2-3 seconds. It was purely to prevent me becoming unwell. It was certainly a lot less action than someone who hates wasps might do. That's what I mean about disproportionate. The accusation that I caused significant injury due to doing this is very upsetting. Being pressured to answer for it nearly a year on even more so. This pressure was being applied at the precise time I made these mistakes. One of the "mistakes" was an accident, and I have two witnesses to say so, including another manager. The other was actually a small mistake, which I corrected in the appropriate way. Shouting at someone, I fully accept, was very wrong, as I said. I was really upset at the time at having to face my colleague.


Is there not an expectation that any other issues from the past should have been addressed with me at the time? And the normal disciplinary procedure followed? And doesn't the wealth of material I have that concretely disproves a large part of the content of the witness statements count? I just don't get why I only got the full picture when I was given the investigatory report.
Thanks.

Malthusian

If you want an opinion on whether something is fair or not, ask an eight year old child. This forum focuses on practical help - and the answer is that it is not a court of law so there is no requirement to allow you to cross-examine witnesses.

If you are being accused of making someone seriously ill simply by objecting to their aerosol and running out of the room then either your employers are so deranged there is little we can usefully say that will help you, or you aren't telling us the full story, in which case the same applies.