Appeal - new witness interviewed by hearing manager in secrecy after adjournment.

[Hungrybear]

My hearing manager adjourned my case to review the evidence and come to a verdict. Several days later the hearing manager interviewed a new witness without my knowledge and denying me the chance to review/question the new evidence. The disciplinary outcome letter was written two hours after interviewing the new witness. They used the new evidence to find me guilty of using a swear word in a joke and issued me with a final written warning for my first offence. This was after taking into account my 30 plus years of exemplary service.

There have a number of procedural failings since the process began even though there as been an HR advisor involved at every stage. Interviewing a witness in secrecy after the hearing breaches internal policy and ACAS code of practice. I have appealed but I doubt I will win it.

Does anyone have any case law from tribunals I can quote in my appeal? This might make the Appeal manager and HR take notice

thanks

Bear

[Retromau5]

Quoting case law in your appeal may make your situation worse. Focus on how the new evidence being kept from you denied you chance to explain yourself properly and main the disciplinary unfair. If your employer has a grievance policy I'd ask for it to see what is expected.

[Hungrybear]

Rigged disciplinary hearing post whistle blowing

Today, 15:55:PM
In 2023 I raised a concern internally about the head of department breaking the law. I believe this was successfully as he left in the autumn of 2023
In early 2024 I was informed I had behaved inappropriately breaking the dignity at work policy. There were 6 allegations and at hearing in July I was found guilty on three. I was awarded a final written warning for my first offence. Saying a rude word in a joke at an internal meeting.I’ve lodged an appeal.

HR have not followed their own procedure from the start. Investigation was judgemental rather than factual, mis quoted witnesses or ignored their evidence in my favour. The hearing manager with the help of HR sought and interviewed more witnesses in secrecy during adjournment. It points to a desire to find me guilty at any cost. So I doubt I will get a fair appeal.

On the whistle blowing the main accuser will loose their temporary promotion and a10% pay cut due to head of department going. His friend will loose the same plus his top cover for his poor performance. The causal link does look weak. However the behaviour of HR is very odd. Could this be due to my whistle blowing? I have no evidence only conjecture.

I’ve applied for early severance, but feel aggrieved the disciplinary as cost me my career. During the disciplinary my role was restructured and I was offered a ring fenced opportunity to apply. This would turn my three year temporary promotion into a permanent one. I declined due to the stress I’m under and my loss of faith in the company. I have taken a £10,000 pay cut.

Post appeal what options do I have? I doubt I will win due to HR ignoring their own policy. Does the option change in the unlikely chance I win it and all charges dropped?
thanks

[ULA]

At the moment if you only have conjecture and no evidence then you currently cannot link anything that has happened recently in terms of the disciplinary action back to your whistleblowing last year.

Of the 3 allegations that you have been found "guilty" of, do you deny them?
If so I presume you have set this out along with your issues about the process in your appeal?

I am not quite sure about your comments of:

1. Turning down an opportunity that came out of the disciplinary to make your temporary promotion permanent?
2. Having taken a £10,000 pay cut, how has this come about?

Post appeal, if it is not upheld, then the disciplinary action will remain on your record for the prescribed time. You could raise a grievance about the process but if you did that in the appeal and it is not upheld. the possibility is the grievance outcome may be the same.

If your appeal is successful then there is no disciplinary action on your file. Raising a grievance about the process would only be an option if this did not form part of your appeal.

[Hungrybear]

They decided during my disciplinary to restructure the role I’ve been filling on temporary promotion for three years. I’d lost faith in the company at this stage and no faith it would be a fair process. I was also too stressed from the disciplinary to go through the process. Therefore I’ve been returned to my substantive grade and a loss of £10k in salary.

The only evidence I have is the accusers temporary promotion ended with the sacking of the head of department and he received a 10% pay cut. HR have failed to follow their process at every stage and not even used their own templates. Denying me of facts I needed to build my case.

In my appeal I deny all three of the allegations. The first allegation is said to have taken place the day after a colleague died. In reality he died 14 days after the date of the allegation, which I proved at my hearing and they ignored.

allegation 2 referred to me calling someone by a nickname. Which I have done in personal one to one emails and never verbally. Only the accuser said I did this and 13 other witnesses never heard me say it out loud. The accuser sits directly behind the lady and must have seen it over her shoulder. The name used was Babs which does not object too.

Allegation 3 was a joke said at a meeting which contained a swear word. The secret witness and one other say it happened. The other 6 attendees at the meeting deny it happened. The hearing manager dismissed the 6 witnesses testimony saying they may not find the word offensive and ok at a meeting. The alleged word is wank.

Ive now lost complete faith in the company and applied for voluntary early severance. My position is untenable as a leader due to the number of people involved in the case. I’ve lost my teams respect

[Retromau5]

What do you mean by 'secret witness'? For you to be able to answer the questions and defend yourself correctly, surely you should know who a witness is? Your disciplinary does seem to have some very questionable methods applied by whoever was chairing it, but when it comes to internal company investigations they can pretty much do whatever they want. Code of conducts are a great bragging point for a company, but when you put the people within the company in the spot light, they're all human and a lot of people will start shifting blame to protect themselves. You're thinking of the word 'fair', whilst they're thinking of the word 'liability'.

If you're looking to appeal the decision then I would argue that the balance of probability tips in your favour based of what you've posted. In allegation 3 you are acused of something by a person and deny it, thats 50-50. Then you said that 6 other people said it did not happen and this would indicate it was less likely that it happened so the balance of probability tips in your favour. As for allegation 2, if the person the nickname was used against isn't offended, and the word was used in a private communication, then how is that offensive to someone else? If my name is Richard and someone at work calls me Dick, as long as I'm not offended by it there's no issue. I can't see how someone can be offended on another person's behalf.

[Hungrybear]

Thank you for your comments.

After the hearing and reviewing the evidence the hearing decided several dates later to interview a new witness. They never informed me. They interviewed the witnesses the at 3pm and sent me the letter notifying me of the outcome at 17:00. The first me or my union rep heard of the new witness

[Retromau5]

Deciding to interview a new witness after hearing the evidence isn't an issue, and they wouldn't need to tell you. I would object to them making a decision without you being able to see the new witness' statement though. You're supposed to be given all evidence during an investigation for you to review before you're questioned. I'd argue that this was unfair.

[Hungrybear]

Well it’s nearly a month since my hearing. Ive chased HR for a date for my appeal. They are busy, short of staff and think it might be October. Are they doing this to eat into my three months time limit for tribunal or does the time only start after the appeal?

[ULA]

The majority of claims have to be made three months less a day from the alleged incident / issue you are claiming about.

You therefore need to work your timescales for making a claim on that basis.