dismissed for gross misconduct on an assumption

[Pollyy]

Hi there very lost confused and low at the moment feel lost in an unknown world of employment issues. Basically firstly can some one advise after Tupe should I have signed and been issued with a written statement of employment and secondly can I really be dismissed on an assumption after at a disciplinary hearing that was investigated and chaired by the same person? After originally being invited to an investigatory meeting which I was unable to attend as was signed off work by my doctor with work related stress for 7 weeks, on my fist day back suspended after serious allegations had been made against me but when asked what they were his reply was I don't know at the moment.

[ULA]

On your first question in regard to TUPE there is a clearly defined process of consultation with staff (often via a union or elected staff representatives) and as part of this all staff should have been notified in writing of the transfer, status of their existing contracts of employment and any measures that the “transferring in” company would be taking in respect of the transfer.

Ideally when the transfer is complete, you should be provided with up-to-date written statement of employment, giving the name of the new employer and saying that your terms and conditions haven’t changed.

On the dismissal how long have you been with the company? If it is less than 2 years then unfortunately, unless the reason for your dismissal falls into one of the exceptions criteria, then some companies will avoid following a disciplinary process since the employee’s ability to bring a claim is limited. If you have more than 2 years’ service then the company should have followed the disciplinary process as set out in their employee handbook or at the very minimum comply with the ACAS Code of Practice on disciplinary procedures.

Sorry just have some questions:

Was your suspension when you returned to work because the company was still carrying on the investigation?

Did you inform your company at the time you received notification to attend the investigatory meeting you could not attend due to being signed off sick?

Was the suspension followed up in writing detailing the nature of the allegations, who was investigating and the likely timescales for the investigation to take place?

When you were invited to attend the disciplinary were you informed in writing, given adequate notice to attend, provided details of the allegations and any documentary evidence and the right to be accompanied?

Have you been given the right to appeal and if so what are the timescales you have to submit this?

Responses to the above questions would be really helpful to be able to provide you with the right guidance to help you.

[Pollyy]

Hi Ula, Thank you for taking the time to read and respond to my issue.

I have nothing in writing with regards to TUPE before the disciplinary hearing i requested a copy of my signed terns and conditions and received a copy of my original contract dated june 2015 when i started with the first employer, I tupe over to this firm in September 2017.

Yes i advised on my doctors advice i am to unwell to attend the investigatory meeting so pleas could they postpone it until i was fit for work.

When i returned to work i was suspended due to serious allegations had been made against me but they said they couldn't tell me what they were because they didn't know yet but i will receive a letter, when i asked how long until i will receive it they said how long is a piece of string. The suspension letter was followed by the invite to the hearing.

When the letter eventually came it had an additional 2 things on it then were on the first letter back in April which was inviting me to attend the investigatory meeting (which i never had the chance to attend) It now stated 3 things rather then just the original one. The letter that came was dated 1st June same date as my first day back and day i was suspended yet it wasn't sent to me until the 5th via email. Yes the follow up suspension letter came it stated the same person who suspended me had carried out the investigation and the allegations against you are as follows.... please attend a disciplinary hearing on the 8th of june the meeting will be chaired by..(same person who suspended and investigated) attached to the email on the 5th was 3 reports of every movement on the tracker, every purchase on the fuel card and every purchase on the store card nothing highlighted so still unaware at this stage what the actual issue was as surely its not everything. Yes i was advised i could bring a union rep or a colleague. yes was advised at the disciplinary meeting have the right to appeal an according to their procedure i have 5 days to do this in writing.

Thank you, an more questions please just ask ahead.

[Pollyy]

Maybe a time line of events will help you.

Monday 9th of April made company aware I am sick and unable to attend work.

Tuesday 10th of April receive letter inviting me to an investigatory meeting on Tues 17th April re mis use of company vehicle.

Monday 18th I sent sick note re work related stress for 2 weeks and requested they postpone meeting until i am fit for work. at no point did i have any response from the company.

Friday 25th of May i made contact with the boss advising i would like to get back to work as soon as my sick note runs out on the 31st of may (No response) I text another supevisor on the 30th advising i am concerned i have not heard from anyone and i am due back to work is there an issue. (No repsonse) Finally on the 31st of may i receive an email just sating plea report to office at 8.30 tomorrow.

1st of June - I returned I was suspended immediately due to serious allegations against me for which they couldn't tell me what they were as they didnt know?

5th of June - Invitation to hearing Letter arrives via email (but the letter is dated 1st of june) stating a full investigation had been carried out and the allegations against me are as follows - Mis-appropriate use of company fuel card, Mis-appropriate use of company vehicle mis-appropriate use of the store card and 3 spread sheets with alot of of information on, nothing highlighted as to what teh actual issue was.

8th of June - I attend meeting, they have nointerest in anything i have to say, they have the wrong terms and conditions for me and they dismiss me with immediate effect

(The store card was handed back to them in February after a vebal warning for buying a pair of socks!!

Hope this helps you understand.

[ULA]

Thank you for both posts and the timeline is very useful.

On the TUPE situation although you did not get an up-to-date written statement from the "transferring-in" employer if they provided you a copy of your original contract then they are clearly preserving your original terms and conditions.

Sorry on the timeline when did you send in your medical certificate and request them to postpone the meeting until you were fit. Day and date are not feasible. Also want to check you did this before the date of the meeting.

Were you signed off sick from 18 April until your return on 1^st June?

Firstly, after you were suspended you should have received an immediate letter confirming the suspension and the allegations. Once the investigation was completed and concluded that disciplinary action needed to be taken then the letter inviting you to a disciplinary meeting should have been sent. The person who conducted the investigation should ideally not be the same person as carried out the disciplinary.

At the disciplinary did they take you through the spreadsheet and highlight the entries that were an issue – were these all of the entries or just some of them? If it was only some of them then when they sent out the information to you they should have highlighted those “problem” entries so that you could prepare your defence against those specifics. In terms of the store card where any of the issues for expenditure after you handed back the store card. If so what was their view when you informed them of this? Did you have to sign back the card so there is evidence of when it was returned?

Was any of the evidence they provided consistent with you having actually mis-used the company fuel card, vehicle and prior to its return the store card?

[Pollyy]

Sorry I sent in my my medical cert on the on the 16th of april via email and stated hard copy will follow and advised i cannot attend the investigatory meeting which was due on 17th of April so yes before.(Sorry so much info got my dates confused on the time line) i was sick from the 9th of April self certified for 5 days then under sick note from the 16th up to the 31st of May (Including)

I was handed the suspension letter in the office on my first day back 1st of June (it was ready and waiting for me) stating a number of serious allegations but when asked they advised they didn't know right now what they were.

Yes at the meeting they advised which entries on the spreadsheet were the issue it it wasn't all of them it was 2 on one day. They were NOT highlighted to me previously, I even sent them an email when i received the evidence (spread sheets) stating I don't understand what i am having to answer to. Yes there were transactions from after i handed the card back there were 3 people in the room when i handed it back (one of tehm was who they wanted to be note taker in the meeting) Their view when i informed them the card was returned in February was just basically a shrug of shoulders an decided then they would only concentrate on 2 fuel transactions. No there evidence is not consistent the fuel cards were shared between employees as they didn't have enough but as i was on contract from beginning i had one registered to my vehicle so my reg is used irrelevant of which vehicle/operative was using it. I advised them of this but they just said we see a pattern and we are dismissing you on the assumption you are filling up other peoples cars with diesel you have the right to appeal good bye. I still have not received this is writing.

[ULA]

Thank you for clarifying the situation with regard to the medical cert.

In terms of process the suspension letter you received should have detailed what the allegations were since it is unreasonable to suspend you on allegations they do not yet know. Secondly if there were multiple transactions on the spreadsheet but only a few were the cause of the allegations then these should have been evident from the information they sent. If this had "accidentally been overlooked" then they should have responded with the information when you asked for it. This is in order that you have time to prepare your defence/case in advance of the disciplinary hearing not at it. So in my view a few procedural issues.

From what you have said it sounds like the fuel car was used by multiple employees and when it was used by someone else when the fuel was paid for your registration number was given even if they were driving a different car??

In terms of the transactions they concentrated on can you remember who used your card that day?
How many transactions were on the spreadsheets and how many were the "issue" ones that the company are using to

substantiate the

allegations?
Who do they believe you are filling up diesel for?
Also just thought the use of the card would necessitate a receipt being given which like a credit card payment I think are date and time stamped, would getting this information prove that you were elsewhere at the time i.e. in the office, at another location therefore it could not be you using the card?

Have they dismissed you with or without notice? The written confirmation of the outcome should be with you shortly of the meeting happened on Friday.

I think the next step for you is to consider whether you are going to appeal the decision and if so start putting together your appeal letter.

[Pollyy]

Hi ula yes dismissed without notice. My letter didn't arrive today and they have ignored my request for a copy of the notes taken at the meeting.

yes the card has a reg printed on it and this is what is used for invoice. They said I am filling up other people's cars (didn't specify) and it is about 3 transactions on the spread sheet that they kept going on about. I havecan idea who I gave it to but only after the meeting did this come back to me. Yes I am 100% appealing as soon as the letter arrives. I hope my time to appeal doesn't start from the verbal dismissal? I have an ex employee will to write a statement that it was common practice for the fuel cards to be passed around due to a shortage of them.

[ULA]

If it is just the three transactions that is the issue then on your appeal these are the ones you need to concentrate on. Having not been given the full disclosure as part of the letter inviting you to the disciplinary and dealing with a stressful situation, which the meeting would have been, then I am not surprised the issue of who used the card if it was not you, did not "spring to mind."

The basis of your appeal can be on one or multiple of the following grounds:

1. Challenge the way the disciplinary action was taken against you. For example, if your employer did not follow their own disciplinary policy or the ACAS Code of Practice. You would need to check against any disciplinary policy they have in case there is anything you can add in. The points from what you have said you could raise here is the fact they suspended you without any knowledge of the allegations against you and the lack of information detailing which transactions were an issue in the documentary evidence provided which did not allow you to specifically prepare for the meeting.

2. Challenge the evidence on which your employer based their decision. For example, if they believed something to be true without evidence or without enough evidence to support it. Here you can deal with the situation of the shortage of cards, they are used by other people but who have to declare your reg number so how can the company prove it actually was you.

3. Challenge the decision your employer took. For example, if they have acted differently in the past in similar cases. Not sure if you know of anything that would support this.

4. Give new evidence or reasons why disciplinary action shouldn't be taken. For example, you may want to point out your clean disciplinary record, work record and length of service, if that is the case. Also of you can remember who had the card at the time who may have used it, where you in the office/another location at the time of the transactions. Your ex-colleague’s witness statement will also be useful here.

In terms of the timescales for appealing this should be detailed in the letter and should provide a reasonable time for you to submit it.

[Pollyy]

Ula, Thank you so much this is very helpful i very much appreciate your time and comments.

Thank you!

[Pollyy]

Ula sorry just one more thing that is worry me is there Disciplinary Policy and Procedure states if you wish to appeal "this should be submitted within five working days of receiving notification" They can't claim this to go bu the verbal notification can they? as I still have not received my letter and worrying they are delaying it on purpose.

[ULA]

Under the ACAS guidelines details of the outcome of any disciplinary action should be given in writing as soon as the decision is made, with amongst other requirements the timescale for lodging an appeal and how to do so. My view therefore is no is should not be the verbal notification it should be the written notification.

[Pollyy]

Hi ula,

The letter has arrived and goes into no further detail then the invite to the hearing letter and surprisingly enough unlike the hearing letter that was emailed and dent recorded delivery to ensure it was received, this letter was just sent by post not recorded and with an incomplete address.....

anyway the letter is slightly confusing as it reads 2 different things, please can i have your opinion.

Further to your hearing on the 8th June chaired by ******************, this letter confirms the termination of your contract of employment. You are not entitled to any notice.

A full investigation of the facts surrounding complaints against you was made by ******************. Having put the specific facts to you for your comment as teh disciplinary hearing, it was decided that your explanation/excuses were not acceptable. For this reason the company believes it is left with no alternative but to dismiss you with notice on the ground of gross misconduct.

Theres more but what i am confused about is in one sentence it states i am not entitle sto any notice then it states to dismiss with notice.

[ULA]

I agree they have not been consistent about their position with regard to notice. This will be something you will need to clarify them I guess!!