Prep for Disciplinary hearing

tommytynan123

Have just talked son through a forthcoming hearing for ''bringing company in to disrepute''. Part of the letter states he ''should refrain from discussing with other employees'' although getting a statement from some would help his cause. Is that 'rule' a legal rule or just the employer writing it into the letter? Can he speak to them and get statements.
Thanks

Masomnia

It's the employers request and not the law. But he needs to be careful, as if he looks like he's breaching confidentiality they may well use that against him too.

In his situation I would respond to the letter in writing saying that while he appreciates that it is confidential and he respects the request not to discuss it he would like statements from colleagues to be included as part of the hearing.

Undervalued

tommytynan123 wrote: »

Have just talked son through a forthcoming hearing for ''bringing company in to disrepute''. Part of the letter states he ''should refrain from discussing with other employees'' although getting a statement from some would help his cause. Is that 'rule' a legal rule or just the employer writing it into the letter? Can he speak to them and get statements.
Thanks

How long has he worked there? If it is less than two years then the firm can basically carry out any procedure they like (or none) as he would have no recourse to claim unfair dismissal.

If he has been there over two years then they need to conduct a "fair process". The easiest way for them to do that is to follow the ACAS guidelines. However these are no longer obligatory and a alternative process could also be fair.

Generally he should be able to obtain a statement form any other employee he feels could help his case.

In what way are they claiming he "brought the firm into disrepute". Is that a reasonable interpretation of whatever he did (if indeed he did anything)?

Remember an employer does not need proof, only a "reasonable belief" that misconduct took place. They are not a court of law.

bertiewhite

tommytynan123 wrote: »

Part of the letter states he ''should refrain from discussing with other employees'' although getting a statement from some would help his cause.

How is he supposed to obtain a statement from a fellow employee without discussing it with them?

agrinnall

bertiewhite wrote: »

How is he supposed to obtain a statement from a fellow employee without discussing it with them?

Well that's the point of the thread, isn't it? :doh:

sangie595

bertiewhite wrote: »

How is he supposed to obtain a statement from a fellow employee without discussing it with them?

What he needs to do is contact the person managing the hearing and say that he wishes to interview named colleagues for the purposes of gathering statements in his defence. Employers generally allow this, but may insist upon sitting in to observe - to ensure that no pressure is brought to bear on people. The risk of this strategy is that by involving others, it is possible that he will end up with more witnesses against him. Either because they won't give evidence that disputes what the employer is saying, or possibly because his view of events isn't supported by them.

Certainly he cannot approach them without permission from the employer. The letter has told him that, and doing so without permission will simply land him in more trouble.

bertiewhite

agrinnall wrote: »

Well that's the point of the thread, isn't it? :doh:

I thought the point of the thread was "is this law or just the employers wishes"?

Undervalued

bertiewhite wrote: »

I thought the point of the thread was "is this law or just the employers wishes"?

Which in this context is more or less the same thing!

If they say he can't then he can't, certainly without obtaining specific permission. If the employer chooses not to let him then they may be at more risk of a claim for unfair dismissal succeeding if it gets that far (assuming he is eligible to bring one).

As Sangie has said if he approaches them without the employer's specific permission, having been give a general instruction not to do so, then that would be misconduct in itself.

sangie595

Undervalued wrote: »

Which in this context is more or less the same thing!

If they say he can't then he can't, certainly without obtaining specific permission. If the employer chooses not to let him then they may be at more risk of a claim for unfair dismissal succeeding if it gets that far (assuming he is eligible to bring one).

As Sangie has said if he approaches them without the employer's specific permission, having been give a general instruction not to do so, then that would be misconduct in itself.

Agreed. You have to be very careful about how you gather evidence from other employees, and the basic "rule" is that your always do it with the employers permission, and on their terms. If the employer refuses, and if you have an eligible claim, that refusal is evidence towards a potentially unfair dismissal.

But, as I indicated, it is also something of a wild card, because it may not say what you think our expect it to say, and once out of the box, you can't shove it back in. It is similar to calling a witness to a tribunal against their will. You can do it, but you can't guarantee what they will say won't make things worse. People don't like getting involved. I would only go down this route if I were certain of what they would say, or desperate because I had no defence!

The OP may do better explaining to us what the allegation is, what defence they have and why they think these statements would help. Contrary to received opinion, employers don't spend their days hanging out here to see if one of their employees posts, and besides which, neither disciplinaries nor tribunals are about surprise secret evidence suddenly saving the day. Your either have a defence, or you don't. We can advise on how it might be improved, or played, and we can tell you if you are barking up the wrong tree or haven't got a good argument. Some people think that being told you haven't a good case is unhelpful, or even nasty. It isn't either. Knowing when to give up an argument, or when to "plead insanity" can actually be the best option for someone. I have known enough cases where telling the truth and actually holding your hands up to something has resulted in someone not being dismissed, when all indications were that they ought to have been, and if they'd tried to defend their actions they probably would have been. Employers can be perverse. Sometimes "mea culpa" works!

tommytynan123

Thanks so far. He was leaving work in a hurry to get to a cricket match and having clocked out he couldn't get to the locker room because the passageway was blocked with a trolley. The trolley had a baby in and the mother had been allowed to use the staff toilets. So the trolley with baby was unattended.

For a joke he put his finger up by the trolley and took a photo and added ''I'm on the way if I can get out of this prison'' and used snapchat to send to team captain. By complete chance another employee had turned up, saw what he did, and told his worst enemy what she had seen. This worst enemy reported the incident which was also recorded on CCTV. (I've slapped him for being stupid) His hearing is based on ''disrepute'' ''breaking DPA'' and ''inappropriate behaviour''

Being snapchat it is not social media and photos self-destruct after 10 seconds? Employers do not have a copy and their only proof is the witness statements and CCTV. Son does have a copy as his friend has some app that saves them. It has never appeared on social media. In the photo you cannot see the child at all or see the company logo - in fact it took me a while to figure out it was a trolley as it was taken so close.

The employee who witnessed has now said, on a PM on Facebook that she was pressurised by the other employee to tell all. He has a screenshot. It appears now that half the store know he has been suspended and why - a few are leaping to his defence with comments. He has not asked anyone directly. In fact on Day 1 back from leave couple of days back he was met by a store assistant who said ''haven't you been sacked yet?'' which was the first indication something was not correct. (good confidentiality!!)

He also has a recorded conversation (really not sure how) of the worst enemy saying she will get him out the store eventually.
Bearing in mind this happened in the staff area not in view of customers it seems very OTT. Employers do not know he has all this evidence.

Final questions please. 1. Employer has said they will be producing the CCTV so can he insist on seeing it prior to the hearing. 2. They have said that I cannot accompany him (I'm ex HR) but he has got a colleague lined up and I can sit outside and he can pop out to consult with me if needed. Is that correct procedure now? (I know it changed)
Kids!!!!!

Geoff1963

So this is some kind of supermarket.

I'm guessing the company is arguing that "prison" could be taken as referring to : the company in general, rather than the blocked passageway in particular.
Taking photographs of people without their consent may be bad, but a picture of a trolley probably isn't ; maybe there a "no photos on site" rule.

Did your son have any conversation with the mother ? Is she making a complaint ? Does she know what is happening ? Maybe she would feel bad about causing him inconvenience.