Handed my notice in but now they are taking me to a disciplinary- Help needed

[charitynjw]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Reference post #28

http://www.bailii.org/uk/cases/UKEAT...4_06_1201.html

Abbey National v Fairbrother PLC

1. It is evident that questions of reasonableness arise in a constructive dismissal claim at the outset, when deciding whether or not the employee has been dismissed at all, since the section 94 right does not fall to be considered unless dismissal is established under section 95. That means that the implied term requires to be examined. It is set out in Malik. We find the passage at the end of Lord Steyn's speech, under the heading "THE EFFECT OF MY CONCLUSIONS", to be of considerable assistance:
   "Earlier, I drew attention to the fact that the implied mutual obligation of trust and confidence applies only where there is 'no reasonable and proper cause' for the employer's conduct and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the obligation."
   What is stressed there that has, perhaps, sometimes been overlooked, is that conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:
   1. what was the conduct of the employer that is complained of?
   2. did the employer have reasonable and proper cause for that conduct?
   If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
   3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
2. In a straightforward unfair dismissal case, questions of reasonableness will not normally arise at the stage of determining whether or not the employee was dismissed. That is a question of fact, to be determined objectively on the evidence of what actually happened between the employer and employee. When, however, it comes to assessing whether or not, in dismissing an employee, the employer acted fairly, questions of reasonableness will then arise: section 98(4) of the Employment Rights Act provides that the resolution of that issue will depend on whether or not the employer acted reasonably or unreasonably in treating the reason he dismissed the employee as a sufficient reason. His conduct towards the employee will, at that stage, be subjected to a reasonableness test.
3. However, we note that, although the point at which reasonableness considerations arise differs as between the two types of case, the point which is being addressed seems to be the same. It is that of whether or not, when conducting himself towards his employee in a manner which has resulted in the detriment of his job coming to an end, the employer had reasonable and proper cause for his conduct.

33. In either event, the employer evidently has a duty to act reasonably but what does that mean? We have no difficulty in holding that that requires recognition of the fact that employers are afforded a measure of discretion in their conduct of their relationship with their employees. In particular, we are satisfied that they have a measure of discretion when deciding how to conduct a disciplinary procedure and in deciding how to conduct a grievance procedure. That is evident from the reference to "reasonable and proper cause" in the formulation of the implied term and in the statutory requirement that they act reasonably in their response to whatever section 98(1) or (2) reason applies. It means that they must not act irrationally or perversely in the course of such procedures. They must not take account of irrelevant material. They must not fail to take account of relevant material. They must not take decisions that no reasonable employer would take. The analysis in Clark v Nomura International plcis helpful in that regard.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

The fact still remains that the employer is well within their rights to hold a disciplinary hearing; this was a breach of the rules of his employment.
I have hear these arguments for years, like I say they are usually a matter for the legal team to resolve, so we don’t get involved, the one we used was a separate entity entirely and specialises in corporate employment law. They provided us with a code of conduct which we adhered to and they kept up to date with changing legislation.
The comments about what goes on in meetings I can comment on however as I have been through many hundreds I suppose; what you say, is to say the least naïve, I am afraid.
LL

[astraldream]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Whilst i cant add to the legal complications that are being discussed here what i can add to the OP is the experience of going to a tribunal from personal experience.

It is EXTREMELY stressful, you feel you are fighting alone as your the one that will receive letters from them and will have to go through things that have already lead to your depression. It may well appear in the local/national news and bring unwanted attention and your not always guaranteed to win no matter how cut and dried it may seem.

I dont want to put anyone off, its good people stand and fight, but be prepared to fight a long hard fight if you go down this route.

Whatever you decide to do with this problem i wish you luck.

[bluebottle]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Lindalou,

You may have heard these arguments for years, but it doesn't change the fact that employers are required to abide by the law in all its forms. A corporate employment law outfit may have drawn up a code of conduct, but the trouble is they are not familiar with other areas of the law and that is the problem. And whilst an employer may have a right to hold a disciplinary hearing, the Protection from Harassment Act 1997 is being used to challenge this right, especially where there is good evidence or strong suspicion that a disciplinary hearing is being used as a means of bullying or harassing an employee. The recent Wakefield case has brought workplace bullying and harassment into sharp focus and it is pretty clear that Employment Tribunals are scrutinising employers actions a lot more closely than they have in the past.

Also, you cannot argue with case and statute law. An employer disregards such at their peril.

As said in earlier posts, my gut feeling is that the employer is, in this case, going to come horribly unstuck if they do not get a grip on the behaviour of the manager and drop this matter promptly. And my gut feelings are usually right.

[charitynjw]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

In relation to 'psychiatric injury', one of the important factors considered is 'to what extent, if any, has the incident affected the person's ability to cope with day to day life & work.'

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Whilst i cant add to the legal complications that are being discussed here what i can add to the OP is the experience of going to a tribunal from personal experience.

It is EXTREMELY stressful, you feel you are fighting alone as your the one that will receive letters from them and will have to go through things that have already lead to your depression. It may well appear in the local/national news and bring unwanted attention and your not always guaranteed to win no matter how cut and dried it may seem.

I dont want to put anyone off, its good people stand and fight, but be prepared to fight a long hard fight if you go down this route.

Whatever you decide to do with this problem i wish you luck.

Let me give you a real scenario.
A number of years ago half of the lads on the yard decided not to wear their hats, the same day as a HSE inspection.
The following week saw 22 disciplinary hearings; 5 of the staff were sacked. Now who do you think were sacked, was it the ones that apologised for their behaviour and promised they would not do it again, or was it the ones that said it wasn’t their fault because they were not being supervised properly an threatened legal action.
More tellingly
I was present at all the meetings and the brief from up above was that no one was to lose their job over this.
All They just had to do was keep quiet. No moral just what happened.
LL

[lfc3110]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

wow!! now i really am confused. I had written a letter today - here goes-
To whom it may concern, I have been made aware from HR this week that I am been investigated for theft. This has come as a huge shock to me as I may be many things, but a thief is not one of them. From the information I have managed to get from HR , my procurement card was used during December 2011 although at this time I do not know who the transaction or transactions were to or for how much. If the transactions are mine then I can assure you that I have used the card in error and for that I am deeply mortified and can’t apologise enough. I opened a new bank account in November 2011 with the Nat West and the debit card is very similar to the company procurement card. I have been in shops and accidently gone to pay with my company credit card instead of my debit card but realised at the last minute that I was about to use the wrong card. It is possible that on one or more of these occasions that I didn’t actually realise and went ahead and used it. I do have the same pin number for all my cards, so I wouldn’t have necessarily have noticed. I can only assume the amounts involved are not huge as I didn’t do any huge spending however if they are large amounts then they transactions are not mine and please investigate it as fraud. Once I have received copies of the transactions, which I have been told are on their way out to me, and assuming they are mine I will be back in touch to arrange repayment.
As you are aware I have been lucky enough to secure a new job which I start next week and HR were aware of that and said it was fine to start my new job even though my contractual leave day isn't until 10th Feb. As a result of me already having resigned and you have accepted my resignation, any disciplinary action is now unreasonable and illogical when you consider that the matter can be dealt with amicably without the need for disciplinary. I have no intention of attending a disciplinary when I am expected to be at work by my new employers as this will cause me financial loss. If you refuse to deal with this issue in an amicable and reasonable way then I way be resigning with immediate effect and and holidays that are due, but not taken, to be paid in lieu to me. Disciplinary action, given the circumstances is no benefit to either party. I have taken advice on this matter and withhold the right to take legal action. [FONT='Times New Roman','serif'][/FONT]
Once again I will reiterate if the card has been used by myself then it was a genuine mistake and cannot apologise enough and will rectify the matter as soon as I have received copies of the said transaction/transactions. I look forward to starting my new career and hope you can understand how the mistake has come about, assuming the transaction or transactions are mine and allow me to have the reference I have worked hard for. Please also find enclosed my credit card and pass, both cut up for security purposes. My work mobile has been left at work in my desk drawer. I have no other possessions belonging to YW.

Now I have no idea if I have gone in too hard with all the different views on the subject. Advice again required on my letter- Is it too harsh, should I tone it down? Thanks

[astraldream]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Not sure if that was aimed at me specifically LL, but a disciplinary is a lot different to a tribunal i have been through both.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Not sure if that was aimed at me specifically LL, but a disciplinary is a lot different to a tribunal i have been through both.

No it wasnt sorry i was just following a train of thought

LL

[charitynjw]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

wow!! now i really am confused. I had written a letter today - here goes-
To whom it may concern, I have been made aware from HR this week that I am been investigated for theft. This has come as a huge shock to me as I may be many things, but a thief is not one of them. From the information I have managed to get from HR , my procurement card was used during December 2011 although at this time I do not know who the transaction or transactions were to or for how much. If the transactions are mine then I can assure you that I have used the card in error and for that I am deeply mortified and can’t apologise enough. I opened a new bank account in November 2011 with the Nat West and the debit card is very similar to the company procurement card. I have been in shops and accidently gone to pay with my company credit card instead of my debit card but realised at the last minute that I was about to use the wrong card. It is possible that on one or more of these occasions that I didn’t actually realise and went ahead and used it. I do have the same pin number for all my cards, so I wouldn’t have necessarily have noticed. I can only assume the amounts involved are not huge as I didn’t do any huge spending however if they are large amounts then they transactions are not mine and please investigate it as fraud. Once I have received copies of the transactions, which I have been told are on their way out to me, and assuming they are mine I will be back in touch to arrange repayment.
As you are aware I have been lucky enough to secure a new job which I start next week and HR were aware of that and said it was fine to start my new job even though my contractual leave day isn't until 10th Feb. As a result of me already having resigned and you have accepted my resignation, any disciplinary action is now unreasonable and illogical when you consider that the matter can be dealt with amicably without the need for disciplinary. I have no intention of attending a disciplinary when I am expected to be at work by my new employers as this will cause me financial loss. If you refuse to deal with this issue in an amicable and reasonable way then I way be resigning with immediate effect and and holidays that are due, but not taken, to be paid in lieu to me. Disciplinary action, given the circumstances is no benefit to either party. I have taken advice on this matter and withhold the right to take legal action. [FONT='Times New Roman','serif'][/font]
Once again I will reiterate if the card has been used by myself then it was a genuine mistake and cannot apologise enough and will rectify the matter as soon as I have received copies of the said transaction/transactions. I look forward to starting my new career and hope you can understand how the mistake has come about, assuming the transaction or transactions are mine and allow me to have the reference I have worked hard for. Please also find enclosed my credit card and pass, both cut up for security purposes. My work mobile has been left at work in my desk drawer. I have no other possessions belonging to YW.

Now I have no idea if I have gone in too hard with all the different views on the subject. Advice again required on my letter- Is it too harsh, should I tone it down? Thanks

Hi lfc3110,

Not too sure about this bit.

If it were me, I wouldn't say I have no intention, but would remind them that a disciplinary meeting, while needing to be sorted without delay, has to be at a mutually agreed time & venue. (ACAS guidance)
(Not doing so would be unreasonable.)

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

A bit rough but you may find some bits you can use

To HIMC
It has been brought to my attention that I am being investigated for misuse of my company procurement card.
I have been a loyal employee at ** for ** years and I am shocked that you could think that I would deliberately take something that does not belong to me.
Please let me have details and proof of any purchases that I am accused of making on this card.
Although I have ceased to be employed by you I am eager to resolve this issue, as i am sure you understand I wish to avoid any stain on my previously unblemished record or character.
I possess a National Westminster card which is very similar to the card in question and it is possible that I have used the company card in error, if this is the case it would have been for very a small sum as I would have noticed the absence of payments for significant purchases on my statements of account
If this proves to be the case I offer my sincere apologies and I will of course refund any sums owed and reasonable costs as soon as I receive confirmation.
Because my employment has already ended I see no reason to attend a formal disciplinary meeting also you must appreciate that I have now started work at my new employment and getting time off to attend would be difficult.
I would ask you to contact me as soon as possible, if you require any further clarification of this matter, be sure that I will respond promptly.
LL

[lfc3110]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Thank you LL. Teaboy2 what are your thoughts?

[bluebottle]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Intent in a criminal case has to be proven beyond all reasonable doubt. The onus of proof in all criminal cases lies on the accuser, not the CPS, who are the prosecuting authority. If a retailer alleges someone has stolen from their store, they have to prove their allegation, otherwise, we would have anarchy.

I will reiterate my gut feeling about the OPs case in that if the employer does not get a grip on the manager's behaviour and drop the disciplinary hearing PDQ, the most likely outcome is that the employer will be torn to shreds at an Employment Tribunal. As matters stand, the employer is almost certainly at risk of being sued for psychiatric injury by the OP under Section 3, Protection from Harassment Act 1997. I will be honest in saying that the employer has very unsafe grounds for disciplinary action in this particular case.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Intent in a criminal case has to be proven beyond all reasonable doubt. The onus of proof in all criminal cases lies on the accuser, not the CPS, who are the prosecuting authority. If a retailer alleges someone has stolen from their store, they have to prove their allegation, otherwise, we would have anarchy.

I will reiterate my gut feeling about the OPs case in that if the employer does not get a grip on the manager's behaviour and drop the disciplinary hearing PDQ, the most likely outcome is that the employer will be torn to shreds at an Employment Tribunal. As matters stand, the employer is almost certainly at risk of being sued for psychiatric injury by the OP under Section 3, Protection from Harassment Act 1997. I will be honest in saying that the employer has very unsafe grounds for disciplinary action in this particular case.

I think maybe one thing at a time, no one has formally accused anyone of anything yet, hopefuly they wont.

They will be fully aware of the repercussions of doing so.

If they do make accusations, all the legal remedies you prescribe will still be there, if they dont the OP will be able to get on with their life. Which i suspect is what they want.

LL

[lindalou]

Intent in a criminal case has to be proven beyond all reasonable doubt. The onus of proof in all criminal cases lies on the accuser, not the CPS, who are the prosecuting authority. If a retailer alleges someone has stolen from their store, they have to prove their allegation, otherwise, we would have anarchy.

.

I really don’t want to get into this discussion on here as I do not think it is appropriate to the OP at the moment. But elwhere ? It is interesting.
In passing I hear what you say about the accuser having to prove the complaint. But common sense tells me that the accusor is not the one that decides if it is in fact proof positive, nor may I say are the police, now that would be anarchy.
LL