Gross Misconduct Advice

[Chris87]

Please excuse me if this is a huge post I wan't to give as much and as honest information as possible without giving out the name of the company I work for etc..


Background
I'm a duty manager at a large food retailer, the role consists of allot more work/responsibility than frontline staff with very little extra money only paid while no other management is in the building and allot of time not even then but the prospect of moving from a 7.5 hour contract to a full time salaried position keeps me interested in the role.


I've worked for the company since 2011.


The Story
Two weeks ago today (Saturday) I was working a late shift (11am - 8pm) taking over as duty manager from my line manager at 5pm when she left; as she was leaving I made an off the cuff comment about how slow the day had been and how easy I'd expected it to be getting the store setup for the next days trade at which point my manager told me if that was the case the expectation for the night had changed to include what amounted to an impossible amount of extra work.


Promptly at 5:30 the store became ridiculously busy right up until close at 7pm which left me massively behind on all the extra jobs; in a big rush to get my usual jobs and the extra jobs done myself and other members of staff didn't leave the store until 9pm (an extra hour worked unpaid), in the fluster to get out of the building I'd attempted but it would seem I failed to set the alarm properly, I checked with everyone and noone knew if I had or not but made the assumption I had and went home.


We have an alarm company monitoring the store 24/7 that automatically sets the alarm and notifies my manager at 10pm if it isn't already set and my manager was the person that opened Sunday morning so there's every reason to think she knew it hadn't been set properly at that point.


Monday night I was due to do the same late shift, noone notified me of my error and I was left to take charge of the store from 5pm to 9pm, Monday night went much more smoothly and we managed to leave on time; We get a late night delivery that had turned up as we left. I'd been informed previously that there's no need to set the alarm if they're waiting outside so I promptly locked the door, closed the shutter and left without setting the alarm.


Again my manager was the first in the next day so again should have noticed if the alarm was supposed to be set but again noone informed me that there was an issue.


Wednesday morning I arrive for my next shift 6am - 10am, I open the door and do all the morning duties including putting quite a big delivery away then at roughly 9:45 I'm called into the office for a "quick chat" and have the fact that I'd failed to alarm the door on two occasions presented to me, I explained why and was promptly suspended for gross misconduct.


Post-Suspension
I've been suspended a week, all my rotas for the next 4 weeks have dropped from the average 35 hours I have been working / was previously booked in to work to 16 hours and I got called into work again for a follow up, when I asked I was told I didn't need to bring a rep or anything.


When I got there I was informed that the investigation would be concluded by the end of today and I'd be re-instated until the disciplinary was carried out because "There's no point paying you to be at home" and they can't find cover for my shifts while my manager is on holiday.


When I asked if that meant I couldn't be fired I was told she couldn't speculate on the outcome and that it's still a very real possibility, I was also informed I should just keep my head down and if I talked to anyone about it I'd be re-suspended until the disciplinary.


Now I've got to work a week with the possibility of being fired looming over my head and I've already had quite a few members of staff questioning me about it; while I've avoided answering them, the amount of information they seem to know is unreal, including the fact that one of the witness' that has made a statement that makes the situation seem allot worse had only recently put in a grievance against me.


Having been told what he's claiming to have said in his statement and considering the investigation is concluded I asked for the evidence against me so I could make a defence and have been told the law changed last year and they only have to give me an investigation report and I wouldn't get it until I get the letter inviting me to the disciplinary.


Questions
1. Can you get fired after being re-instated?
2. Do I really have to work a week with people that know I'll possibly be fired in a weeks time?
3. How is it okay that I'm not allowed to talk about the situation but clearly the witness'/possibly the management have been talked to people about it?
4. Was it right to let me work the Wednesday morning or even the Monday night without informing me & knowing they were going to suspend me?
5. Was it right to let me work the Wednesday then mark me down as "Paid Absence" for it?
6. Do they have to take into account that one witness has put in a complaint against me previously?
7. Is it true they don't have to provide me with any evidence and only have to give me the absolute bare minimum time to make my defence despite the investigation being concluded?
8. Is it okay that my manager has openly been talking about the situation with me on facebook?


Sorry this post is so long, I'm trying to give all the information honestly, I'm going to citizens advice on Tuesday but could really do with some advice to calm my nerves until then!


Thanks for any help/advice anyone can offer

[Chris87]

Re: Gross Misconduct Advice

I'm not sure if this makes anymore difference but looking back at my old time sheets & pay slips I wasn't actually planned in or paid to be duty manager on either night but was the last member of management left in the building.

[Tools]

Re: Gross Misconduct Advice

First of all, your initial "chat" which led to investigations, you should have been given the opportunity to be accompanied and given at least 24 hours notice.

Rather than (or in addition to) speaking with Citizens Advice, I would suggest you give ACAS a call. They are specifically set up to deal with employment issues and are very good.

[Chris87]

Re: Gross Misconduct Advice

Thanks for the advice, I'll try to phone them tomorrow if they're available, are there any other obvious things they've done wrong? I've had a week of this looming over my head and would really like something to settle my nerves heh

[vanman]

Re: Gross Misconduct Advice

Acas has made some small changes to its Code of Practice on Disciplinary and Grievance Procedures.The revised Code came into force on 11 March 2015 and is available to download from this page or view online.
The revisions were made following a judgement by the Employment Appeal Tribunal (EAT) which clarified the rules on making requests to be accompanied at grievance or disciplinary hearings.
The changes relate specifically to paragraphs 14-16 and 36-38, which relate to the right of accompaniment at disciplinary and grievance hearings. No other parts of the Code have been revised and Acas' guidance on the general handling of disciplinary and grievance situations in the workplace remains unchanged.

http://www.acas.org.uk/media/pdf/f/m...procedures.pdf



Inform the employee of the problem



paragraph 9.


If it is decided that there is a disciplinary case to answer, the employee
should be notified of this in writing. This notification should contain
sufficient information about the alleged misconduct or poor
performance and its possible consequences to enable the employee to
prepare to answer the case at a disciplinary meeting. It would normally

be appropriate to provide copies of any written evidence, which may

include any witness statements, with the notification.
10.
The notification should also give details of the time and venue for the
disciplinary meeting and advise the employee of their right to be
accompanied at the meeting

[vanman]

Re: Gross Misconduct Advice

Is it okay that my manager has openly been talking about the situation with me on facebook

do you mean openly as in all your friends and theirs can see any comments.

[Tools]

Re: Gross Misconduct Advice

I was going to pick up on that @vanman, @Chris87 I assume that your company has a Social Media Policy?

ACAS may not be open tomorrow as it's bank holiday, if not definitely give them a call Tuesday

[Chris87]

Re: Gross Misconduct Advice

The discussion is in private messages (including her refusal to give offer me the evidence against me), i was just wondering if all discussions about it had to be in a formal setting.

I'm due back in work tomorrow as i've been re-instated due to lack of cover for my shifts and the fact that they dont want to pay me to be at home; is it normal / okay for them to make me come back from a suspension for a week before my disciplinary? I've told my manager how awkward & uncomfortable it's going to be for me knowing that one of the witness' has told everyone in the store everything.

[Chris87]

Re: Gross Misconduct Advice

A friend of mine in work has printed out policies from the internal computer system that outlines procedures and provides training surrounding disciplinaries.

I'll get them scanned but a couple of things i've picked up on just scanning through them are:

1.) "A letter should be sent from HR Head Office, explaining the reason for suspension, checking the address stored at Head Office is up to date" - I haven't received any letters at all.
2.) "The suspension will be paid, based on the employee's normal daily/weekly hours for the duration of the period." - My normal 35+ hours has gone down to between 13 - 16 as paid absence since being off.
3.) "Ensure a copy of all evidence is sent to the employee with a contents list, including a copy of appropriate policy & training record card (except cctv footage - arrange for employee to see the cctv footage)." - As I've said, i've been informed i don't have that right anymore

[vanman]

Re: Gross Misconduct Advice

ok save /print off The private messages from Facebook for a start (you may need them if it all goes tits up)

did you get a handbook when you sighed your contract of employment.
if not ask your employer for a Staff handbook

or the disciplinary Procedure maybe on your contract of employment

without a copy you will not have a fair disciplinary meeting

when you have acquired the disciplinary Procedure and it tally's with the policies from the internal computer system.
with not supporting you with full pay while on suspension and not notified you in writing.
would be a breach of contract
Examples of breach of contract in employment law include:

• Failure to pay employees’ salary, expenses, holiday or sick pay appropriately
• Failure to pay an employee in lieu of notice after a dismissal without notice
• Changing terms and conditions of employment without agreement
• Failure to follow the correct procedure for disciplinary or grievance matters

What is an employment contract?



An employment contract is an agreement between employer and employee. By law all employees must have an employment contract within a set period after starting their job.
Employment contracts set out the conditions of employment including the location of work, the job description and salary. The employment contract also details rights and responsibilities, and will often detail other matters such as the grievance and disciplinary procedures, sick pay and holiday pay and the notice period required for dismissal or resignation.
It is important to realise that employment contracts do not have to be in writing, and that binding terms can be implied by the conduct of the parties to the contract, or by accepted customs and norms. For example, if you are expected to work in a particular location then it is likely that a contract term designating that location as your ‘place of work’ would be implied. Similarly, all employment contracts include an implied term that employer and employee have a duty of trust towards one another.

[teaboy2]

Re: Gross Misconduct Advice

Regarding your pay - What does your contract state your hours are?

As for change of the law regarding evidence - Thats a load of bullshit! They are required to present you with all evidence they have so you may prepare yourself and base your defense on said evidence at the disciplinary.

In any event they are in breach of ACAS code of practice (denied you your statutory right to be accompanied at the investigatory meeting) but don't mention it to them, let them dig themselves a hole. Because if they do dismiss you, you can bring it all up when appealing and they'll have to either give you your job back or face tribunal (Assuming you been employed for more than 2 years).

[Chris87]

Re: Gross Misconduct Advice

Thanks so much for all the replies, I just got a copy of the employee handbook and I've requested my contract from HR as I've never been given a copy.

I'm contracted for 7.5 hours but I've worked 35+ since starting in 2011.

[Chris87]

Re: Gross Misconduct Advice

Update -

I received an invitation to a disciplinary hearing but it arrived with too short notice to go ahead with it so it's postponed until head office can send me out a new letter, the upside is i got to see the evidence they're providing which is as expected an investigation report.

Right off the bat it says the investigation started 13/05/15 and concluded on the 01/06/15 (I've been re-instated since 22/05/15 with the understanding that the investigation had been concluded).

It just has a list of names of colleagues interviewed and a note saying detailed notes were taken at the interviews then a little observation section that say's my manager tried to contact me on a specific day during my suspension and i hadn't returned her calls (which, despite it being a saturday and not a day i was listed as working and told to be available for, i had called her back).

It goes on to say that i admitted to it (which i did, i dont beleive in being dishonest) and everyone else they interviewed couldn't even remember what happened on the night because they weren't interviewed until a little over a week after the event. Right at the bottom it has "I therefore believe <name> behaved with gross mismanagement / negligence/ incompetance / wilful dereliction of duties and caused an action which seriously breaches company security by failing to alarm the store when locking up"

ACAS said that the process had been handled wrong but it was up to the company how they want to handle it and i could only really use the guidelines if it went to tribunal so i'm not sure what to do when i have my actual disciplinary

[teaboy2]

Re: Gross Misconduct Advice

"Post-Suspension
I've been suspended a week, all my rotas for the next 4 weeks have dropped from the average 35 hours I have been working / was previously booked in to work to 16 hours and I got called into work again for a follow up, when I asked I was told I didn't need to bring a rep or anything."

This nails it. That so called chat was in fact an investigatory meeting, and you were told you didn't need to bring a rep with you. Thats a breach of your statutory right to be accompanied to such meetings. They also should not have held the investigatory meeting just like that. They should have suspended you, informing you as to why your were suspended in writing, then invited your to attend an investigatory meeting by letter (informing you of your right to be accompanied and what your suspected of having done).

This is likely what ACAS was referring to when they said they had not followed correct procedure and it can be used at tribunal - In otherwords, if they dismiss you as a result whilst not having followed correct procedure, then the fairness of the dimissal will likely be deemed unfair. In fact, failing to inform you of your right to be accompanied to the investigatory meeting means they have breached your statory rights to be accompanied, and they didn't just fail to inform you, they went further than that and told you you didn't need to bring anyone to accompany you. Any dismissal would therefore be unfair!!

Now as for the first time you failed to set the alarm, that's not gross misconduct, that's an innocent mistake as a result of a stressful night. As for the extra hours work, well your entitled to be paid for that, in fact, if it had been me, i'd have ****ed the rest of the duties off and gone home at closing time (i've worked in retail and sales most my working life and had my own businesses based on retail and sales, and looking at starting a 3rd one). You had not put the security of the store at risk as you knew even if you had incorrectly set the alarm as an innocent mistake, that the alarm company monitors it and automatically sets the alarm anyway. The shop was secure as it was locked up fully, therefore the securely and the CCTV (Both internal and Public Police operated CCTV on the street were in operation - If there is Public CCTV on the street) therefore the store was being monitored and any breakin would have been caught on camera. An alarm system does nothing to prevent someone breaking in, it merely results in those breaking in having less time to steal prior to the police arriving.

As for the second night - Well is it customary practice to leave the store unattended and not set the alarm whilst the delivery man unloads the delivery? Besides that you were following instructions from the manager who no doubt instructed you to do that anyway, therefore making it customary practice in the store you worked at!!


Can you post up a copy of the letter inviting you to disciplinary? (or type up precisely what it says word for word as i suspect this letter doesn't comply with ACAS code of conduct: Grievance and disciplinary procedures either)

Also can you post up what is deemed gross misconduct in your contract or employment of company hand book?

Have they sent you copies of the evidence/statements they have gathered and intend to rely on at your disciplinary hearing?

[Chris87]

Re: Gross Misconduct Advice

Is notice of a disciplinary counted from when they send a letter or when you receive it?

Apparently a letter was sent out at somepoint Wednesday (3rd) to invite me to a disciplinary Monday (8th), my manager told me in advance that the disciplinary would probably be Monday but was away over the last few days so when it hadn't arrived yesterday (Saturday 6th) I contacted her informing her I hadn't received a letter and was told she would print one and meet me to hand it to me today (Sunday 7th); I still haven't actually read the letter and the employee handbook states "You will be given two working days notice to attend the hearing".

Does that mean I just don't go? or do I go and inform them I haven't had the appropriate notice in writing? or do I go and get it over with?