Selective evidence

[Jagg]

Hello, I hope someone can please advise. I am due to attend a disciplinary hearing. Text messages have been offered as evidence against my personal conduct. The company are showing a small number of these text messages rather than the full thread and citing this as proof of what I’m accused of. Is this legal? Surely, a selection of text messages fails to provide full context and a true picture? I’m really worried the company will uphold the allegations on the basis of selective evidence. I have none of my own to offer. Thank you for any help you can offer.

[Benny8902]

Hello, I hope someone can please advise. I am due to attend a disciplinary hearing. Text messages have been offered as evidence against my personal conduct. The company are showing a small number of these text messages rather than the full thread and citing this as proof of what I’m accused of. Is this legal? Surely, a selection of text messages fails to provide full context and a true picture? I’m really worried the company will uphold the allegations on the basis of selective evidence. I have none of my own to offer. Thank you for any help you can offer.

Personal email from now on for any communications. I would send the below letter without modifying anything except those within [here] parts throughout. I would also convert it to a PDF and send it to your HR department. Not those conducting the disciplinary.

[DATE – 25.03.2024]

Dear Sir,

RE: DISCIPLINARY HEARING

1. In light of the letter dated 12.01.2024 summoning me to a disciplinary hearing regarding allegations of my conduct, it is imperative to emphasize that such accusations cannot be taken lightly.

2. It is not merely a request but an absolute necessity that I am provided with the opportunity to scrutinize any witness statements or evidence that will be presented against me prior to the disciplinary hearing. This is not negotiable. The failure to adhere to this basic principle of fairness and due process will not be tolerated.

3. In accordance with the principles of procedural fairness and natural justice, I request that all individuals involved in the disciplinary process, including [person 1] and [person 2], attest to their impartiality and lack of conflicts of interest. Any hint of bias or ulterior motive will be met with objection and appropriate action.

4. As a fundamental tenet of justice, I assert my right to cross-examine any witnesses or accusers who have levied allegations against me during the disciplinary hearing. This is not a privilege to be granted at the discretion of the employer but a non-negotiable requirement to ensure a fair and transparent process.

5. Furthermore, I remind my employer of my unequivocal right to have a representative or companion accompany me throughout the disciplinary proceedings. This is not a mere formality but a crucial safeguard to ensure that my interests are adequately protected and advocated for.

6. Let me be abundantly clear: any deviation from established company policies and procedures, as well as relevant employment laws and regulations, will not go unnoticed nor unchallenged. The disciplinary panel, including [person 1] and [person 2], must adhere scrupulously to these standards.

7. In respect of the above I draw your attention to the authority of Spink v Express Foods limited [1990] IRLR 320;

It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticize or dispute that evidence and to adduce his own evidence and argue his case.


8. Furthermore, this is supported by Bentley Engineering Co Ltd v Mistry [1979] ICR 47.

Employers disciplinary proceedings require that an employee should have a chance to state his own case [and] to know sufficiently what was being said against him, so that he could put forward his own case properly and have a chance to state his own case in detail. The employee must know in one way or another sufficiently what is being said against him. If the employee does not know sufficiently what is being said against him, he cannot properly put forward his own case. This encompasses the employee either being allowed to see witness statements against him or be allowed to listen to what witnesses have to say about him.

9. It is not merely a matter of procedure; it is a matter of principle. My employer must recognize and uphold the implied terms of mutual trust and confidence throughout this investigation. Anything less would betray a fundamental breach of the employer-employee relationship.

10. Furthermore, I request full transparency regarding the origin and nature of the allegations against me. Any ambiguity or lack of clarity in this regard will only serve to undermine the integrity of the disciplinary process and cast doubt upon the motives behind these accusations.

11. Given the gravity of the allegations leveled against me, I request that the disciplinary hearing be conducted with utmost urgency and efficiency. Delaying tactics will not be countenanced, as they serve only to exacerbate the stress and uncertainty already inflicted upon me.

12. Finally, I expect nothing short of a thorough and comprehensive communication of the outcome of the disciplinary hearing, promptly and in writing. Any decisions made must be accompanied by a clear rationale, allowing me to fully comprehend the basis of such decisions and consider any further actions that may be warranted.
Yours sincerely
[Name]

[ULA]

Given the limited information in your original post (which is absolutely fine), before being able to provide detailed advice to you please can you answer the following questions:

* Have you been invited in writing to the hearing and been provided the following information:

* Reasonable time from notification of the hearing to the date?
* Do you believe that you have been given all the evidence that supports the allegations they are making?
* Full details of the allegations?
* The right to be accompanied?
* The name of the person conducting the hearing?
* The possible outcome of the hearing?

As a general point was there an investigation carried out prior to the decision being made to ask you to attend a disciplinary hearing and if so where you interviewed as part of that process.

In regard specific regard to the text messages:

* Is the phone they have been extracted from a work phone or a personal phone?
* If a personal phone is it on company set up text group?
* Are you in that group on a personal or work mobile?
* Do you have the full text thread?

As an experienced employment law adviser, I would suggest some caution in the approach ,that has been offered by other participants on this thread, at least until we have a clearer understanding of your situation.

[Jagg]

Thank you ULA
I have
I can confirm I have been provided with all the below

* Reasonable time from notification of the hearing to the date YES
* Do you believe that you have been given all the evidence that supports the allegations they are making. YES
* Full details of the allegations. YES
* The right to be accompanied YES
* The name of the person conducting the hearing YES
* The possible outcome of the hearing YES (dismissal)

As a general point was there an investigation carried out prior to the decision being made to ask you to attend a disciplinary hearing and if so where you interviewed as part of that process.



YES, I WAS INTERVIEWED TWO DAYS AFTER THE COMPLAINANT AND THE INVESTIGATION HAS LED TO CERTAIN ALLEGATIONS BEING DISPROVEN BUT AN ALLEGATION ABOUT MY PERSONAL CONDUCT HAS SCANT EVIDENCE BETOND SOME TEXT MESSAGES TO ANOTHER EMPLOYEE WHICH CAN BE READ IN A NUMBER OF DIFFERENT WAYS.

In regard specific regard to the text messages:

* Is the phone they have been extracted from a work phone or a personal phone?

IT IS WORK PHONE

* If a personal phone is it on company set up text group?
* Are you in that group on a personal or work mobile?



NOT APPLICABLE AS THIS WAS ME TEXTING MY COLLEAGUE OUTSIDE WORKING HOURS - NO GROUP

* Do you have the full text thread?



THE HR PERSON WHO INTERVIEWED ME WAS SENT THE FULL THREAD FROM THE COMPLAINANT WHO HAD SAVED ALL TEXTS AND THE HR PERSON HAS SELECTED THE ONES SHE THINKS COULD PROVE THE ALLEGATION ABOUT MY PERSONAL CONDUCT. LOTS OF TEXTS ARENT INCLUDED ONLY THE ONES WHERE I AM STROPPY! THIS AMOUNTS TO AROUND 2% ALL THE TEXTS WHICH I DO NOT THINK IS ENOUGH TO PROVE THE ALLEGATION BUT MAYBE I AM WRONG






DO I HAVE A RIGHT TO SEE THE FULL THREAD AND TO SELECT MY OWN MESSAGES WHICH WOULD SHOW ME IN A BETTER LIGHT? OR CAN THEY DENY THIS AS IT WAS COMPANY PHONE. DOES THE BURDEN OF PROOF LIE WITH ME?



SORRY I DONT WANT TO SAY TOO MUCH AS I DONT WANT TO OUT MYSELF. I FEEL I AM BEING UNFAIRLY TARGETED

[ULA]

Thank your for all the further information you have provided which was very helpful.

If you are party to the text message thread do you have them on your own phone? If so I would advise that you download them from your device and take them to the hearing as part of your defence. If you cannot for whatever reason download I am sure a local mobile phone shop may be able to help. Alternatively, make a formal request, in advance of the hearing, for the full thread to be provided to you as you are aware the complainant has provided it and you wish to use certain of those messages in your defence at the hearing.