Gross Misconduct

[clop87]

I am speaking on behalf of my sister she is currently undergoing a grievance procedure regarding ''inappropriate comments'', and could be facing disciplinary action, and result in my sister losing her job. However the circumstances regarding this are, the person who has accused her of these comments alleged he reported the incident around 3 years ago, although there is no record of this, and management at the time confirmed it was never reported to them. He has said that he has only referred to this due to my sister being made his supervisor, a job that this guy went for? so far from the investigation it has become apparent that people have confirmed that 'banter' of this nature takes place in her dept, but can't specifically say that she has done these said inappropriate comments, and my sister has stated she would never say anything such as what she is accused of.One person is alleged to have said that they have had to intervene however can not remember what it was over and when this was. He has also worked with my sister on numerous occasions since the alleged incident voluntarily, with no signs he had an issue with her.

First question, can my sister be disciplined for something that allegedly happened 3 years ago, should they even be hearing this?

Based on the fact that there is no solid evidence to support him, can my sister be disciplined.Also with people confirming banter is a common occurance across the dept, can my sister be singled out/discriminated against when it a problem that's been highlighted through the investigation?.

[charitynjw]

Re: Gross Misconduct

Hi clop87, & welcome to Legal Beagles.

When you say "undergoing a grievance procedure", what exactly do you mean?

If the employer is looking into a complaint or grievance from another employee, they are quite entitled to do so.

If, on the other hand, they are instigating disciplinary action against your sister, that is a different scenario.

Is she a member of a union?

[clop87]

Re: Gross Misconduct

Hi clop87, & welcome to Legal Beagles.

When you say "undergoing a grievance procedure", what exactly do you mean?

If the employer is looking into a complaint or grievance from another employee, they are quite entitled to do so.

If, on the other hand, they are instigating disciplinary action against your sister, that is a different scenario.

Is she a member of a union?

By Grievance procedure I mean their HR department are looking into the grievance that this guy has put in, My sister has attended a hearing and they have told her she will hear from them with a decision on whether the guys case if founded or not.If founded it will go to disciplinary against my sister.

My sisters concern is that should it go to disciplinary, there is a chance she may lose her job, what she would like to know is that based on what i have told you is there grounds for them to take this to disciplinary and also if it did result in her losing her job would it be fair?

And no union.

[charitynjw]

Re: Gross Misconduct

Fairness (or for that matter, 'unfair') in employment law relates not so much to a moral judgment; it is more concerning whether a proper procedure has been undertaken.

[enquirer]

Re: Gross Misconduct

... the person who has accused her of these comments alleged he reported the incident around 3 years ago, although there is no record of this and management at the time confirmed it was never reported to them...

There is no evidence that the original complaint even existed. Take care that she never gives the impression that it did - their only hope is some sort of admission from her. Get his assertion and their admission in writing.

He has said that he has only referred to this due to my sister being made his supervisor ...

This reflects very badly on him. See if you can get this in writing.

... a job that this guy went for?

If possible, get this confirmed in writing.

... people have confirmed that 'banter' of this nature takes place in her dept, but can't specifically say that she has done these said inappropriate comments ...

Get this in writing. When it starts to go wrong for management, they may put pressure on these people to start 'remembering'.

One person is alleged to have said that they have had to intervene however can not remember what it was over and when this was.

They don't know who, when, where or what. This is worthless to them but good for you. Get it in writing.

He has also worked with my sister on numerous occasions since the alleged incident voluntarily, with no signs he had an issue with her.

Evidently not a pressing issue. This reflects badly on his credibility. See if you can get this in writing.

First question, can my sister be disciplined for something that allegedly happened 3 years ago, should they even be hearing this?

They can try, but it will have very little credibility, particularly given the deficiencies mentioned above.

Based on the fact that there is no solid evidence to support him, can my sister be disciplined?

Before they can do that, they have to investigate, hear the evidence, and then find against her.

Also with people confirming banter is a common occurance across the dept, can my sister be singled out/discriminated against when it a problem that's been highlighted through the investigation?.

The allegation is specific to her. What others are doing is relevant, but only peripherally so.

This certainly appears to be a malicious allegation. However, the fact that they have no evidence should not mean that you become complacent.

Ambitious managers love things like this because it means they can feel important. This is why she must be very careful with regard to what she says, and why it is essential that you get these things in writing - as quickly as possible, before spiteful co-workers and people under pressure start to embroider the truth.

[charitynjw]

Re: Gross Misconduct

Further to enquirer's excellent post, 'investigative' meetings sometimes have a tendency to wander across the boundary into disciplinary territory, which is a complete no-no.

During any meeting, be aware of who is in attendance, & always try & get a copy of any notes which may be taken (then & there - they will have access to a photocopier, so there should be no problems.)

[clop87]

Re: Gross Misconduct

Enquirer many thanks for you reply I will relay this on to my sister.

Can I just ask with regards to getting things in writing can she ask for this now or only if it progresses to the disciplinary stage.

She tells me that her company normally have a time limit for raising grievances which is 6 months but we are under the impression that because he said he reported all this back when it happened that they have had to look into this?

[charitynjw]

Re: Gross Misconduct

It might be worth pointing out here that Employment Tribunal claims have to be submitted within 3 months (less 1 day) of the incident complained about.

Therefore the employer's practice of stretching out grievance procedures seems, in itself, 'unfair'.

This said, there would be no reason why an ET claim cannot be initiated despite the company 'grievance' taking longer, so it may be unlikely that an ET would allow that as a suitable excuse for a 'claim out of time'.

[clop87]

Re: Gross Misconduct

It might be worth pointing out here that Employment Tribunal claims have to be submitted within 3 months (less 1 day) of the incident complained about.

Therefore the employer's practice of stretching out grievance procedures seems, in itself, 'unfair'.

This said, there would be no reason why an ET claim cannot be initiated despite the company 'grievance' taking longer, so it may be unlikely that an ET would allow that as a suitable excuse for a 'claim out of time'.

Would an employment tribunal claim be worth it however if my sister was to lose her job as a result of these false accusations. I would presume it would be on the grounds of unfair dismissal which an ET would be logged within the 3 month period?

[charitynjw]

Re: Gross Misconduct

Would an employment tribunal claim be worth it however if my sister was to lose her job as a result of these false accusations. I would presume it would be on the grounds of unfair dismissal which an ET would be logged within the 3 month period?

Unfair dismissal would be subject to the 3-month deadline (unless the Tribunal would consider an out-of-time - I wouldn't count on it, though).

I guess the question is, would she want to continue working there?