Demotion or gross misconduct

[Massi]

I need some help and advice

iam a supervisor in a company with clean work record

it all started Thursday 1st may hr call me and asked to see me
myself and hr sat in a room as they asked me on the 3ed April why I stopped off at home for15 mins on the way to another factory in the next town I explained that as I was passing and I needed the toilet and that is why I stopped off at home this was wrote down and said that all for know

the next day HR called for me again and said they are going to take it down the serious gross miss conduct route
but as I had worked there 10 years could they go back to the director of the company and arrange a meeting to discuss any other way to avoid this for example demotion I asked for the meeting to be set up as I thought it could be all cleared up

in the meeting I had the director telling me he did not believe me
and as he did not think my performance was up to scratch I had to choose gross misconduct that could lead to me being sacked or take demotion I asked if there was any other way as I have never had any performance Warnings on my file
The reply was no that's the option
i took the demolition as it was clear that I would loose what ever happened so I went on to my new role on the Monday

i felt like HR and the director was trying to bully me in to it and if I dance to there tune life could be made difficult

over the weekend I looked in to this as did not think it was right what they was doing and I asked to retract my demotion I had not singed anything as soon as I did that I was told ok I was still a supervisor but put me on a really bad job that temps do
I think they want me out by any means

[teaboy2]

Re: Demotion or gross misconduct

NO its not right. I know this may sound like a risk to take. But you need to put in writing that now you have had time to think about everything and seek advise, you are formally notifiy them that you do not agree to the demotion, and want for them to perform a full proper disciplinary procedure as per ACAS code of conduct: disciplinary and grievance procedure. (They clearly have not followed the correct procedure, making the demotion unlawful and a breach of your original contract as supervisor) - There actions also may amount to Blackmail if this was criminal law, which you could use against them in tribunal or civil court)

Now did they tell you exactly what gross misconduct offence you committed was? If so, what was it?
How did they know you stopped off at home?
What evidence do they have to say you did not stop for a toilet break (15mins is about enough time to have a number 2), even if you had been on the factory floor and needed to go?
Where you on paid time at the time you stopped off?

I may have more questions for you. But you need to provide as much details as you possible can.

[missgruntled]

Re: Demotion or gross misconduct

Hi Massi, Im sad for you, this is horrible treatment. You are being pushed out and they must have been looking and waiting for something for a long time and they are grasping at anything, as going to the bathroom is a ludicrous reason!

Does it state in your contract or written statemnet what they class as gross misconduct? It should be there, check that. If it does not state `going to the bathroom whilst out travelling' (and written like that you can see how stupid that looks on paper) then they are hanging themselves arent they.

[Massi]

Re: Demotion or gross misconduct

Hi teaboy2

they said aid it was a very serious offend and it could lead to me dismissal and that I had abused there trust but going home I would also like to add that after looking back on that day my hours of work are 7:55 - 4:25 that day I stayed on till 5pm to get a job finished so they can't even say theft of company time .

the vans are tracked that is how they know I stopped at home when I explained to the director what I had stopped off for I said he did not believe me and that I had two options Domitian or gross misconducts that could lead to my sacking

[Massi]

Re: Demotion or gross misconduct

Hi teaboy2

they said aid it was a very serious offend and it could lead to me dismissal and that I had abused there trust but going home I would also like to add that after looking back on that day my hours of work are 7:55 - 4:25 that day I stayed on till 5pm to get a job finished so they can't even say theft of company time .

the vans are tracked that is how they know I stopped at home when I explained to the director what I had stopped off for I said he did not believe me and that I had two options Domitian or gross misconducts that could lead to my sacking

I have been to hr this morning explaing my issues with still being employed as supervisor and now being put on to the shop floor,they said they will look into this but I'm struggling with this as its embarrassing but feel I can't do anything else but plod on? Ps sorry for all the spelling mistakes and punctuation as I'm using my iphone!! Thanks again

[teaboy2]

Re: Demotion or gross misconduct

Where you being paid at the time? - I'm assuming you were not when you said they can't even say it was theft of their time or similar.

For them to say its a breach of trust, is a very serious flaw in their argument. Going to the toilet is natural part of day to day living, and therefore toilet breaks are not a breach of trust but condition of human necessity. Punishing you for going to the toilet, alleging that you didn't go to the toilet, when they have no proof to say you didn't is simply not a good enough reason for them to punish you. Demotion is also not an option available to them as it means your original contract was terminated and replaced with new one where your core terms of employment (Job Title, Job Description and responsibility, Pay Rate, and hours and working times) have all or in part been changed. Making it a new contract of employment. Such change of contract can not be done without mutual consent where a consultation period is always required before the change is agreed.

Basically they are up shits creek without a paddle, if they refuse to back down and return you to your role as supervisor. If they choose to conduct a disciplinary as well, they would have to be very careful, as their actions already amount to constructive dismissal should your resign!! Though i recommend you do not resign, as this can be sorted out without the need yo take such action, which would result in taking legal action against them, if your prepared to go down that route!

By the way, just to make sure, do you have any medical condition, or taking any medication that may mean, or result in the need to go to the toilet more than usual? If so, your protected under the equality act 2010 and their actions would be a breach of said act.

[vanman]

Re: Demotion or gross misconduct

For them to say its a breach of trust, is a very serious flaw in their argument. .

What type of industry does the OP work in?
If were let’s say a cash in transit firm then it would be a problem just to pop home

[teaboy2]

Re: Demotion or gross misconduct

Good point, but they don't have factory floors to work on.

[Massi]

Re: Demotion or gross misconduct

What type of industry does the OP work in?
If were let’s say a cash in transit firm then it would be a problem just to pop home

It's an office furniture manufacturer I work for. Just got home now, no response from hr or anybody else, still working on the shop floor even after retracting my demotion. Surely my contract should still stand as a supervisor? It's causing me a great deal of stress the way they are grinding me down! Any advice on what my next step could be? If they were taking me down the disciplinary route should they not have told me by now?

[teaboy2]

Re: Demotion or gross misconduct

It's an office furniture manufacturer I work for. Just got home now, no response from hr or anybody else, still working on the shop floor even after retracting my demotion. Surely my contract should still stand as a supervisor? It's causing me a great deal of stress the way they are grinding me down! Any advice on what my next step could be? If they were taking me down the disciplinary route should they not have told me by now?

Thats the thing, they have failed to take any formal disciplinary action, which again makes their actions unlawful and puts them in breach of contract. Just stick it out for now, and if you not hear anything within 7 days. Put in a formal grievance, i'll help you write one if you need to take that step.

What exactly did you put in the letter that you gave HR? Just so we all know exactly what you put.

[Massi]

Re: Demotion or gross misconduct

Thats the thing, they have failed to take any formal disciplinary action, which again makes their actions unlawful and puts them in breach of contract. Just stick it out for now, and if you not hear anything within 7 days. Put in a formal grievance, i'll help you write one if you need to take that step.

What exactly did you put in the letter that you gave HR? Just so we all know exactly what you put.

I didn't put a letter in, nothing has been done on paper. I said I wanted to know what was going to happen. I said I retracted my demotion last thurs, they said they would have to look in to see if I could retract my demotion? I said I wanted an answer today if possible but nothing. I also told hr verbally the ridicule I'm taking on the shopfloor due to their actions, she said she would speak to my manager about this and get back to me. Nothing has also been done by them in writing!

[teaboy2]

Re: Demotion or gross misconduct

I didn't put a letter in, nothing has been done on paper. I said I wanted to know what was going to happen. I said I retracted my demotion last thurs, they said they would have to look in to see if I could retract my demotion? I said I wanted an answer today if possible but nothing. I also told hr verbally the ridicule I'm taking on the shopfloor due to their actions, she said she would speak to my manager about this and get back to me. Nothing has also been done by them in writing!

Always put everything in writing, so then you have physical evidence. Put what you stated today in a written letter, keep 1 copy for your own records and hand the 2nd copy in to HR in the morning.

Don't worry about whether you can retract your agreement to demotion or not, as a little thing called "under duress" is your key defense their. basically their saying accept or face gross misconduct put you under duress - Therefore any agreement is invalid and not legally enforceable, and in your case, not only were you under duress, but their actions were tantamount to Blackmail as well as in clear breach of your employment rights and your contract of employment.

So in the letter make it clear that your original verbal agreement was made as a result of being under duress (i.e. agree or face gross misconduct for going to toilet and likely be sacked). And if your not fully reinstated to supervisor, you will have no choice but to resign and take legal action for constructive dismissal as a result of their serious breach of your contract of employment and their complete failure to follow any form of formal disciplinary procedure as set out under ACAS code of conduct 1.

If your being paid less whilst working on the shop floor, you can also sue for unlawful withholding of wages, for the difference in wages your currently suffering whilst working on shop floor, in stead of in your supervisor rule. - Mention that you expect to be fully reimbursed for the difference in wages making note that failure to reimburse is deemed unlawful withholding of wages under the employments right act 1996.

Read some more info here - http://www.shoosmiths.co.uk/client-r...game-1558.aspx

Is there anything in your contract about demotion, if it is, it be under disciplinary section? - Doesn't matter if their is or not, as they'd still have to carry out a full and correct disciplinary procedure first.

[Massi]

Re: Demotion or gross misconduct

New twist

i got called in to see the HR manager he wanted to explain that due to me taking the route of demotion the investigation was not followed up but now I have retracted the demotion they are going to do a full investigation on capability they will get some statements off managers relating to the grounds of capability

I asked why it had gone from gross misconduct to capability his reply was that it was still a option it depends on the out come off the investigation

do written statements count for anything also on the capability is there not a presses to follow before going down that route
the problem I worry about is that this director is not going to want egg on his face and has a lot of managers in his pocket that would have the what would u like me to say attitude
need help as what to do next

[teaboy2]

Re: Demotion or gross misconduct

Capability on what grounds. Have you had any performance reviews as they must do one of them first then hold another 1 to see if you had improved in the areas where improvement was due. Where you ever warned about your performance?

They basically gone from Gross misconduct for popping in at home for a pooh, to disciplining you on capability grounds without any issues being raised about your performance as per standard employment practices/procedures.

Written statements would count, but would have to be specific to your performance and supported by documentation based on targets not being met - But also based on performance reviews and your knowledge of their need for you to improve your performance - if they failed to inform you of any need for you to improve your performance, then you'll win hands down at tribunal for unfair dismissal, as it one of the key things a tribunal looks for.

Do you have anything in writing from them about the offer they made you, or the earlier allegations?

[Massi]

Re: Demotion or gross misconduct

About 3 months ago my manager had a informal chat with me instigated by the director in question about my performance nothing was wrote down also the chat was more a case of your not doing this and that instead of is there anything we can do to help or support you no guilde line were set out about how to move forward. It was also done one the shop floor in front of a shop floor worker. I did not think that this was appropriate ferther more I find out that this lad new all about what was said I have never had anything documented regarding performance in my 10years of service