Gross Misconduct Dismissal based on hearsay

MalMonroe

Hello,

Have you contacted acas? 

If you want to take this matter any further then you will have to contact them anyway. Link below -

https://www.acas.org.uk/contact

In the first instance, they can tell you what you can and cannot do and how employers are expected to treat their employees.

If they feel you have a good case to take to Tribunal they will tell you so. If they don't think so they will tell you that, too.

It does seem, from what you say, that you went back to work too soon, that is before you were well enough to cope with your working environment, especially as you had not slept at all well and your manager noticed that you were 'looking not normal' (an unacceptable comment in my opinion.) But even if that is the case, your employer has a duty to ensure your safety whilst you are on work premises. I do hope that the accident you had was recorded in their accident book.

It's definitely worth having a word with acas. Tell them everything that you've told us here. They can advise you better than we can because there's a lot of speculation in this thread. Also do ask them about bringing a case to the Employment Tribunal, they can give you all the information about that.

Truthfully and honestly, we on here don't really know. But acas agents do know. And they have helped me in the past and I feel sure that they can help you now.

Good luck with everything - once you have been advised about your rights at work, you can then start to make the correct decision for yourself. 

Andy_L

Exodi said:

B0bbyEwing said:

Hang on a sec. 

So reading the opening responses here.... I can go to my boss right now, say Frank over there said F U bossman. Soon as work is done with today he said he's going to do you in. 

Of course, I'm making it up. Frank actually told me what a fantastic guy the boss is. But I'm just stirring it. 

And the boss can then fire Frank based on my nonsense? 

I surely hope THAT is nonsense because that's just not right if it's that easy to get rid of someone. 

No, re-read the responses, what you've said would be a good example of hearsay. This is clarified in literally the first sentence of the first reply.

What the OP if referring to is a direct interaction, not hearsay - Frank saying F U to the bossman directly in your example.

No, it wouldn't be hearsay. Because the witness (ie bobbyEwing) is is directly speaking to something they witnesed (that they are lying is a seperate issue)

If you (exodi) were to say that Bobby Ewing said that Frank said "F U bossman. Soon as work is done with today I'm going to do you in" then that would be hearsay. Thendefining feature of hearsay is that the witness didn't actually witness the event but is repeating what someone else (claimed) to hav e witnessed

Andy_L

B0bbyEwing said:

Hang on a sec. 

So reading the opening responses here.... I can go to my boss right now, say Frank over there said F U bossman. Soon as work is done with today he said he's going to do you in. 

Of course, I'm making it up. Frank actually told me what a fantastic guy the boss is. But I'm just stirring it. 

And the boss can then fire Frank based on my nonsense? 

I surely hope THAT is nonsense because that's just not right if it's that easy to get rid of someone. 

Only if, as undervalued said, they can "Form a "reasonable belief" that the misconduct took place." based on your statement. That is after all how witness statements work in criminal cases, they just have to reach a higher standard of proof

It's a lie, but it's not hearsay 

Ath_Wat

B0bbyEwing said:

Hang on a sec. 

So reading the opening responses here.... I can go to my boss right now, say Frank over there said F U bossman. Soon as work is done with today he said he's going to do you in. 

Of course, I'm making it up. Frank actually told me what a fantastic guy the boss is. But I'm just stirring it. 

And the boss can then fire Frank based on my nonsense? 

I surely hope THAT is nonsense because that's just not right if it's that easy to get rid of someone. 

Of course someone can be fired for that.  Frank can be convicted in a court on no more evidence than that, if the police, the CPS and a jury believe you.  Plenty of people have been to prison on the evidence of a single lying eye-witness.

Ath_Wat

Exodi said:

B0bbyEwing said:

Hang on a sec. 

So reading the opening responses here.... I can go to my boss right now, say Frank over there said F U bossman. Soon as work is done with today he said he's going to do you in. 

Of course, I'm making it up. Frank actually told me what a fantastic guy the boss is. But I'm just stirring it. 

And the boss can then fire Frank based on my nonsense? 

I surely hope THAT is nonsense because that's just not right if it's that easy to get rid of someone. 

No, re-read the responses, what you've said would be a good example of hearsay. This is clarified in literally the first sentence of the first reply.

What the OP if referring to is a direct interaction, not hearsay - Frank saying F U to the bossman directly in your example.

No that wouldn't be hearsay.

"Bill said Frank said he was going to kill you" would be hearsay.

"I heard Frank say he was going to kill you" is not, because the "offence" is the actual saying of the words, which the poster in his example was a direct witness to.

TBagpuss

Why have you not provied your friend's evidence as part of yur appel? If there are fresh facts , such as information from another wotness, then that is extremely relvant to an appeal. 

However, as others have said, it sounds as thoughthis is a situation where they formed a reasonable belief, presumab;y based on what the manager said and the fact that you did have an accident, that you were unfit for work. (I asume the suggestion is that you were on drugs or under the influence of alcohol) then they can dismiss and on the face of it, the dismissal can be fair.

I am not clear whether your appeal has taken place but if not, take some proper advice urgetly, but if you want to provide evidnce that you were coming off prescribed drugs and the acident may have been a result of side effects that you have not anticipated, and/or there are people who sw you and can confir nthat you were not / did not present as being under the indluence of drugsor alcohol that's additional evidence you probably need to provid e as part of your appeal.

Otherwise the appeal is simply someone looking atwjhether, on ithe information available to them at the discilinary, the decision was reasonable.

To sucessfully challenge at tribunal I think you have to show that no reasonable employer in your employers place and with the information available to them could have come to the same decision, or that the dismissal was unfair, for example beacuse propre procesdures were not followed (in which case often the only remedy you get is for them to re-do it property, or pay you for any time you would still have been emkloyed for if they had done it property. 


Undervalued set out above what the tests and creiteria are and unfortuantely for you, if it's effect your managers word agaisnt yours then ys, theyare entitled to decide that they find the managers version of events more convincing / more likely to be accurate. 

(Equally, if you knew that you hadn't slept and were experiencing side effects of tapering off your medication it could be argued that you should have raised that before you started working , particualrly if you are in a job involving machinery or drving where it would be relvant to your performnce -if that's the case, it might have been more appropriate for you to take sick leave or ask for lighter duties, not doing so might be seen as negligence)

winewicket

I have not had my appeal hearing yet, and my friend is in the police service, so unfortunately they have declined to give me a statement to support my side of what happened on that day.

Ultimately I did not take drugs like they are accusing me of. However they have 2 counts of negligence as they could have proved this ( also my innocence, if they'd taken the CCTV footage from the cameras), they also could of asked me to take a drug test, of which I would have obliged. They had the means to prove beyond doubt if the allegations against me were correct. Unfortunately my manager who is new in the job and most likely on probation, was the only person in the warehouse that day, and I'm afraid he has grossly exxagerated his statement to cover his own !!!!!!.

Ultimately at the end of the day I get what u are all saying, but I really hadn't done what I'm accused of, and don't see losing my job as fair.

winewicket

Furthermore this manager hasn't known me long enough , nor is he qualified to diagnose my mental health/ability. 

Savvy_Sue

Please try to stop obsessing about what's fair. Dismissal doesn't have to be fair. The law doesn't deal in 'fair'. 

Were their actions legal? Almost certainly yes. 

Do you have any support with the appeal?

Undervalued

winewicket said:

I have not had my appeal hearing yet, and my friend is in the police service, so unfortunately they have declined to give me a statement to support my side of what happened on that day.

Ultimately I did not take drugs like they are accusing me of. However they have 2 counts of negligence as they could have proved this ( also my innocence, if they'd taken the CCTV footage from the cameras), they also could of asked me to take a drug test, of which I would have obliged. They had the means to prove beyond doubt if the allegations against me were correct. Unfortunately my manager who is new in the job and most likely on probation, was the only person in the warehouse that day, and I'm afraid he has grossly exxagerated his statement to cover his own !!!!!!.

Ultimately at the end of the day I get what u are all saying, but I really hadn't done what I'm accused of, and don't see losing my job as fair.

As I have explained, an employer isn't expected to have the detective skills of Inspector Morse, nor are they required to have the legal knowledge of a high court judge! All they are expected to do is make a reasonable layman's attempt at being (legally) fair.

If you have evidence that supports your "innocence" then you need to present it. I cannot see why being in the police service prevents your friend from writing a statement of what they saw, if that helps your case. Ultimately though you cannot force them to do so. Well, technically, if this were to end up at an employment tribunal you might be able to get a witness order, requiring them to give evidence, However the general advice is to think very very carefully before calling a reluctant witness.

If the CCTV is relevant, have you requested a copy if necessary by making a subject access request under the GDPR? It would be perfectly reasonable to ask for the CCTV to be shown at the appeal hearing if it is relevant.

If you are on prescribed medication that might affect your work, were your employers informed? You have a duty to do that. If they were informed, did they then take advice from an occupational health specialist about the situation?

Without some evidence, impugning the "new " manager's integrity isn't going to help one little bit. In the absence of evidence that shows them being untruthful (or simply exaggerating), it is not unreasonable for the employer to believe the more senior person.