Advice needed on husbands dismisal - URGENT!

PIGGINSCRUBBER

Hi,
Need a bit of advice. My husband was sacked from his job of 8 years on thursday, its a bit of a long story so i apologise in advance!

My hubby went to work as normal on 12th December, he was handed a letter which said he needed to attend a disaplinary hearing on 15th December, due to a health and safety breach on 28th November. There was no explanation of the nature of the breach, and my husband had no idea what he had done wrong. He apporoached the person who handed him the letter, and asked what it was regarding, and was told that he was not allowed to tell him, so he went to another manager and asked the same question, again he was told that he could not tell him. My husband at this point was becoming quite aggitated, and asked both managers again, to the same responce, he began to loose his temper, and was then told to phone HR, After about two hours, he was told what he had done wrong, but only after losing his temper, and explaining to HR, that he was not able to do his job operating machinery as he was to wound up and it could be dangerous. His breach was climbing some stairs that had been sealed off with a piece of cardboard, as there was a small leak at the top of them. He had to climb the stairs to get some equiptment needed to carry on his work, one of his collegues had then reported him, a week later for doing so. My husband raised his voice, and lost his temper with his boss and colleague, in hindsight, this was not a good thing for him to do, but he was frustrated because noone would tell him the offence he was accused of. He was sent home from work early. He returned to work the next day, and was placed on different duties away from his regular collegues. On the day of his hearing he was suspended from work until 20th december, he was told to attend a meeting on 17th December, to prepare statements, he had also been reported for aggressive behavior.

He attended both meetings, we had managed to find out that cardboard signs are not acceptable under health and safety law, and presented this to the company, which they dissmissed, ironcly my husband had fallen down the same steps, about two weeks before the breach had occured and there was no signage, and a much larger leak. They used this against him, saying that he should have known better, after his last incident, and that they had assesed themselves and realised they must improve their H & S. They had also taken statemnets with regards to aggresive behaviour, this could not be proved, so my husband was sacked for the reason "there was a unanimous decision that your behavior and conduct constitutes gross misconduct. this is in relation to your blatant disregard for health and safety and your malicous behavior"

As mentioned before, my husband has worked for the company for 8 years, he has never been disaplined for anything before, he has never been threatening or abusive, the only reason he lost his temper on this day is because of the way the situation was handled, if they had told him straight away, he would have continued in his work and none of this would have happened.

We have a few concerns, firstly would the company still supply him with a referance, after all there was no problem with his work, he never had time off sick, and was always punctual, and done what was asked of him. Also does he have grounds for appeal, this has to be done by 4th January, where can we get advice over xmas?

My husband is in a real state, and thinks his working record has been ruined, by a moment of madness, and the spitefulness of a colleague, i would apreaciate any advice, and tips on how to keep him positive.

Thanks in advance!

Ewarwoowar2

Dear PIGGINSCRUBBER,

I'm an employment solicitor. I'll try help you as best I can.

The first thing your husband needs to do is appeal the decision. However, please be aware that the deadline for bringing a claim against his ex-employer is 3 months from the date of dismissal.

He may have a couple of decent reasons to appeal. The first could be that he wasn't given enough information prior to the disciplinary hearing to defend himself at the hearing. His employer is under a legal obligation to outline the offense he's been charged with in the letter inviting him to the disciplinary hearing. They also have to warn him in the letter that one of the outcomes of the hearing was his dismissal.

If he wasn't given enough information and/or wasn't warned that the outcome of the hearing could be his dismissal, then the decision to dismiss may be automatically unfiar. They were also legally obliged to tell your husband that he could bring a colleague or union rep to the meeting.

Is your husband a member of a union? They could help with the appeal and represent him at the meeting.

I'm not sure about the health and safety breach. He did climb up the ladder. However, dismissal on these ground could be appeal if he hasn't been given the appropriate health and safety training. Set out logically in the appeal letter why he climbed the ladder. Explain that he was trying to do his job and no horse-play or messing around was involved. If he has broken health and safety rules, he needs to explain why he did so and why it woun't happen again. His best chance of appealing this decision is to identify any training he hasn't received.

The charge relating to him losing his temper is harder to appeal. If he threaterned someone or was overly aggresive, it may be a valid reason to dismiss. However, my advice would be to appeal this part of the dismissal on the grounds that his ex-employer failed to comply with the statutory disciplinary procedure when they did not outline the charges against him in the letter inviting him to the disciplinary hearing. This led to him losing his temper. It's a weak reason for aggressive or threaterning behaviour, but appealing on these grounds will indicate to the ex-employer that your husband has taken legal advice. This may scare them into re-instating him.

IN relation to the loss of temper, it is a good idea for your husband to appologise to the people he offended and promise it will never happen again. If there are any other mitigating factors (stress at work, death in the family, etc) it's a good idea to raise them in the letter. Point to his length of service and his clean conduct record. He could suggest that he accepts what he did was wrong and will accept a final written warning. Can you get a charactor witness statement from someone of decent standing e.g. a letter for a vicar that knows you husband and vouches for his good charactor?

It was harsh to dismiss him for a minor breach of health and safety rules. Your husband will need to demonstrate that the decision was not within the band of reasonable response and that a warning was more approprite. If you can use the phrase "the dismissal wasn't within the band of reasonable responses" in the appeal letter. Again it will demonstrate you've taken legal advice.

From the information you've provided it seems like he is guilty of the charges he was dismissed for. Therefore, he needs to act remourseful and demonstrate to the ex-employer reasons why the offenses will never happen again. Do not let him lose his temper again in the meeting. Get it on record that he's remouseful and deeply regrets losing his temper.

There's also an issue here about them mixing conduct and capability charges. Did they dismiss for both of the charges mixed together or did they say that they'd dismissed him based on one charge on its own and the other was just an add on? Did they say whether the charge relating to the breach of health and safety was conduct or capability? Capability would be that he was lacking in the skills to do his job i.e. he didn't understand the health and safety rules. Conduct would be them saying he knew the health and safety rules but breached them anyway. It's a bit of a complicated point but it could help you. Please let me know and i'll give further advice.

Please let me know if you have any more questions.

Good luck,

Mike

ohreally

The original letter inviting your husband to attend a disciplinary should have indicated the reasons for the hearing, your husband or his representative should also have been given the opportunity to examine managements evidence to enable it to be verified and tested during the hearing.It is absolutely unacceptable for management to withhold this information

Is it correct your husband had the disciplinary hearing on 15 Dec the outcome being to suspend him until 20 Dec but then instructed to supply statements in relation to a different offence? If so was he told any evidence he provided could lead to a decision being taken to further discipline him?

In terms of an appeal, what does he have to lose as he's already been dismissed?

The purpose of disciplining is not to punish but to achieve an improvement and a disciplinary outcome should be proportionate and reasonable, can you honestly say this has happened - it doesn't appear so.

In terms of your husbands guilt i would be looking to mitigate his behaviour since management may have been complicit in deliberately escalating a situation to that which was becoming volatile due to management failure to disclose information and communicate effectively with their employee plus they should have recognised the stress your husband was enduring through their inept handling of the process and responded appropriately.

Ewarwoowar2

I've just re-read the original post.

Was there two disciplinary hearings: one on 15 December then another two days later? If so, there was no statutory obligantion on the employer to inform him of the offence in the letter given to him on 12 December, when they invited him to the first disciplinary hearing. It's the letter inviting him to the second meeting that's important.

Luvly.cuppa.T

Whoaaa I can't agree with you there Ewar!

If OP's partner was asked to attend a 'disciplinary' and it is his conduct that is at question, then he has to have all the information necessary to defend himself. A legal requirement I think you would agree.

However if it was a 'grievance' meeting that he was asked to attend the first time, then rightly he is not told what it is about until the meeting.

Or it could be that due to the agression that two disciplinaries came about, which would still require notice and specifics beforehand, for each one.

PIGGINSCRUBBER

firstly thanks to you all for your comments so far, thought it may help if i put in the exact wording of the first letter recieved by my husband on 11th December BEFORE any of the aggression came about.

Dear ******,
I am writing to confirm that you are required to attend a disciplinary meeting on Friday 14th December 2007 at 10am in my logistic meeting room.

The meeting has been convened to discuss on a formal basis your failure to comply with the Companys health and safety regulations on Wednesday 28th November 2007.

**** ******, HR Business Partner, will be present at this meeting. You are entitled to be accompanied at the meeting by either a trade union representitive or an employee of your choice.

Please could you inform ***** ******, Production Manager (as i am out of the office) that the above appointment is conveneint and whether or not you will be accompanied to this meeting by midday on thursday 13th Decmber.

I look forward to hearing from you in due course.

___________

On recieveing this letter, my husband asked two managers, and a superviser ,and HR, exactly what is was regarding, this is what caused him to react aggressively, because the company were toying with him.

liney

The meeting the letter invites him was to a 'meeting', not a 'hearing'. In the meeting (i will assume as this is what i would have done) they would inform him of the accusations made, provide this in writing, and arrange with him a day/time for his 'hearing' by which time he would have had time to think about the accusation and state his version of events. Because these things have to be done formally, and recorded properly, i would not have discussed this outside of the meeting with him; purely because if anything is contested later it is not recorded.

Endangering ones safety/that of a collegue willfully, or agressive behaviour would both be classed as Gross Misconduct.

Ewarwoowar2

liney wrote: »

The meeting the letter invites him was to a 'meeting', not a 'hearing'. In the meeting (i will assume as this is what i would have done) they would inform him of the accusations made, provide this in writing, and arrange with him a day/time for his 'hearing' by which time he would have had time to think about the accusation and state his version of events. Because these things have to be done formally, and recorded properly, i would not have discussed this outside of the meeting with him; purely because if anything is contested later it is not recorded.

Correct. The first meeting is what I'd class as an investigatory meeting. There are no legal requirement regarding how it should take place. There was no legal requirement to inform the OP's husband of the charges before that meeting.

PIGGINSCRUBBER - please could you post the content of the second letter, inviting him to the second (and final) meeting. This was the disciplinary hearing for the purposes of the law. Obviously take out any personal information that could identidy your husband or the company.

PIGGINSCRUBBER

i am writing to confirm the outcome of the meeting that we hadon friday 14th december 2007, in the presence of ***** ***** Hr bussiness partner, you chose to be accompanied to this meeting by your colleague, ***** ******, Machine operator. ***** ***** Hr coordinator was also present to take notes.

I began by explaining that the meeting had been convened further to a serious aligtion being made that you breached the companys health and safety policy on wednesday 28th November 2007. i went on to say that it was alleged that on this date when the rest room had been flooded and " taped off" to prevent any risk to the health and safety of employees, you admitted to a member of the conversion team that you had disregardeed the signs and entered the area, i do need to make you aware that under the companys disaplinary procedure, as detailed in " your hand book" , a blatent disregard for health and satety regulations is classified as gross misconduct.

i went on to clarify that there had been a delay in raising this issue with you,as i was first made aware of this allegation, on monday 10th december 2007 at the safety improvement group meeting.

Since sceduling the disaplinary meeting to take place today to discuss the issue outlined above, i explained that further serious allegations have been made regarding your conduct on wednesday 14th december 2007, specically relating to you allegedlly intimidating over members of the conversion team by using offensive language behaving aggressivly and making violent threats

i explain that i have a duty of care for the conversion team and therefore need to instruct a full and independant investigation into these areas of concern and as a result of the disaplinary meeting is postponed until the investigation has been concluded.

For your information i have assigned ***** *****, conversion develpment manager, and ***** ****** HR coordinator to undertake the investigation.

Due to the severity of the situation and in order to allow th einvestigation to be carried out in the most affective way, for all concerned, i explain that i have taken the decision to suspened you with immediate effect. i reiterate that your suspension does not imply guilt or predetermined outcome of the disiplinary proccess.

during the period of suspension you will continue to recieve full pay and will remain an employee boung by your contract of employmnet. during your period of suspension you must not work for any new employers, start a business nor contact customers, suppliers or competitors.

**** and **** will endevour to conduct and complete their investigations as soon as possible and as part of this process they have arranged for you to meet with them today, although this is not a formal meeting you were given the opportunity to be accompanied by either a work colleague of your choice or a trade union representitive.

we will meet again on thursday the 20th December 2007 at 9am to reconveine the disaplinary hearing. you will be provided with the opportunity to read through and respond to all the statements that have been taken during the investigation (two of which i gave to you at the meeting on friday 14th December 2007). Please report to main reception on arrival and, as before, you are entitled to be accompanied by a work colleague of your choice or a trade union representative.

should you need to speak with anyone from the ******** ******* during the period of suspension please liase with myself.

if you have any quieries regarding the contents of this letter, please do not hesitate to contact me on **************

yours sincerely,
***** ******

Ewarwoowar2

That letter looks reasonably thorough.

My advice is to look back at my first post. Appeal the decision. Try to identify any gaps in training your husband may have had re: health and safety. His problem is that he knew that the area was fenced off and still went through the barrier. Is this true?

In many cases I've advised on, if the employee apologises, explains that he realises the mistakes he made and undertakes that it will never happen again, it will make it much more difficult to fairly dismiss him. By just relying on mitigating factors (such as you wouldn't tell me what the charges were, therefore it's your fault I lost my rag) it demonstrates that the employee doesn't have insight into his behaviour.

Go for an appeal based on your husband accepting what he did (there doesn't seem to be any point denying he was agressive or denying he knew he was breaking health and safety rules - please correct me if I'm wrong) and requesting a final written warning. Highlight his 8 years of service and his clean record. Remorse might just save the day.

It appears from what you've written that his ex-employer's caught him red handed, so to speak. Going for a final written warning seems like the only way forward.

ohreally

One other aspect to clarify, were the investigating officers the same ones who procecuted the disciplinary hearing?