Got dismissed today. Advice please. .

[teaboy2]

Re: Got dismissed today. Advice please. .

Point is they knew he was an alcoholic 3 years ago, they knew that was why he was hospitalised, they should have under the duty of care obligations requested access to his medical records, referred him to occupational health and done assessments. They didn't do any of it, if they had and made regular checks with him, and requests for updated records, they would have known about the situation he was in and in turn he wouldn't have felt so alone to the point he stole - Which could well have been a cry for help!!

Anyway fact is they jeopardised the disciplinary by not taking any account of his mitigating circumstances provable by medical records / doctors statement etc, therefore meaning they breached ACAS code of conduct!

Just because stealing is criminal and gross misconduct, if the disciplinary process isn't fair then that's still unfair dismissal! And if they had taken into account his mitigating circumstances they may well have given him just a warning and actually done what they should have done 3 years ago!

[stevemLS]

Re: Got dismissed today. Advice please. .

My employer was not aware I have been depressed or on any form of medication. The last time I had help at work was 3 years ago when I was recoving from alcoholism. I saw occupational health who monitored my health until I was fit for work.
Already tried to emphasise it but will try again.

They are under NO obligation to seek medical records or ongoing medically monitor the situation. They made an appropriate referral to OH after the hospitalisation and at no stage the OP either made their ongoing difficulties known to their employer, sought assistance from them or, apparently displayed any erratic behaviour which would be indicative of mental ill health. Presumably, had the healthcare professional at OH considered that to be necessary, they would have said so when they had determined that they were fit to return to work.

There is NO evidence that it led to the stealing nor did the OP attempt to make that link at the disciplinary. They had a GP letter that listed their diagnoses and their medication.

Breach of the ACAS Code does not in and of itself render a process unfair as I have pointed out previously by quoting from the Code itself.

"The Code is issued under section 199 of the Trade Union and LabourRelations (Consolidation) Act 1992 and was laid before both Houses ofParliament on 16 January 2015. It comes into effect by order of theSecretary of State on 11 March 2015 and replaces the Code issued in 2009.


A failure to follow the Code does not, in itself, make a person or organisationliable to proceedings. However, employment tribunals will take the Code intoaccount when considering relevant cases. Tribunals will also be able toadjust any awards made in relevant cases by up to 25 per cent forunreasonable failure to comply with any provision of the Code. This meansthat if the tribunal feels that an employer has unreasonably failed to followthe guidance set out in the Code they can increase any award they havemade by up to 25 per cent. Conversely, if they feel an employee hasunreasonably failed to follow the guidance set out in the Code they canreduce any award they have made by up to 25 per cent. "

Source: Foreward: ACAS Code of Conduct: Disciplinary and Grievance Procedures 2015

Beyond that, we are not going to agree on this one. I have a ethical difficulty in encouraging OP down a path which I feel is doomed to failure. It is utterly nothing to do with judging the OP on the basis of their MH difficulties (although I still consider the attempt at emotional blackmail reprehensible) and I resent any suggestion to the contrary, it is about recognising the reality of the situation.

[Adrasteia]

Re: Got dismissed today. Advice please. .

What do the Union say , you had your Union rep present, and yes I know USDAW are not the most militant in the world but if they support you then they will fund any appeal etc .

I know someone who was dismissed for blatant sexual harassment yet he won his tribunal because process wasn't followed and probably not taken seriously because he worked in a male dominated environment and the victim was a man

[teaboy2]

Re: Got dismissed today. Advice please. .

My employer was not aware I have been depressed or on any form of medication. The last time I had help at work was 3 years ago when I was recoving from alcoholism. I saw occupational health who monitored my health until I was fit for work.
Already tried to emphasise it but will try again.

They are under NO obligation to seek medical records or ongoing medically monitor the situation. They made an appropriate referral to OH after the hospitalisation and at no stage the OP either made their ongoing difficulties known to their employer, sought assistance from them or, apparently displayed any erratic behaviour which would be indicative of mental ill health. Presumably, had the healthcare professional at OH considered that to be necessary, they would have said so when they had determined that they were fit to return to work.

There is NO evidence that it led to the stealing nor did the OP attempt to make that link at the disciplinary. They had a GP letter that listed their diagnoses and their medication.

Breach of the ACAS Code does not in and of itself render a process unfair as I have pointed out previously by quoting from the Code itself.

"The Code is issued under section 199 of the Trade Union and LabourRelations (Consolidation) Act 1992 and was laid before both Houses ofParliament on 16 January 2015. It comes into effect by order of theSecretary of State on 11 March 2015 and replaces the Code issued in 2009.


A failure to follow the Code does not, in itself, make a person or organisationliable to proceedings. However, employment tribunals will take the Code intoaccount when considering relevant cases. Tribunals will also be able toadjust any awards made in relevant cases by up to 25 per cent forunreasonable failure to comply with any provision of the Code. This meansthat if the tribunal feels that an employer has unreasonably failed to followthe guidance set out in the Code they can increase any award they havemade by up to 25 per cent. Conversely, if they feel an employee hasunreasonably failed to follow the guidance set out in the Code they canreduce any award they have made by up to 25 per cent. "

Source: Foreward: ACAS Code of Conduct: Disciplinary and Grievance Procedures 2015

Beyond that, we are not going to agree on this one. I have a ethical difficulty in encouraging OP down a path which I feel is doomed to failure. It is utterly nothing to do with judging the OP on the basis of their MH difficulties (although I still consider the attempt at emotional blackmail reprehensible) and I resent any suggestion to the contrary, it is about recognising the reality of the situation.

Sorry didn't see that bit about occupational health involvement 3 years ago. Though they still had a duty of care towards him, and they clearly knew how serious is physical health conditions were and should have still had regular updates even if it was just 1 per 6-12 months to ask about his health and mental state.

As per no evidence to suggest his frame of mind led to stealing. Sorry but medication can effect the thought processes and cause people to do things they would not normal do. Same can be said for mental health issues such as depression, people are known to do things as a call for help, that they would not do if they were sound of mind. Fact is the employer didn't even look at the OP's medical reports at the disciplinary and completely ignored them, when in those reports could well have been the evidence you say doesn't exist, yet could have easily proven diminished responsibility. A lot of employers will have simply issued a warning rather than dismiss an employee in such cases if they were made aware of the employees medical/mental issues during or before the disciplinary!

Legislation you coded - Well the employer didn't act reasonably during the disciplinary, therefore they unreasonably failed to adhere to the code, therefore the dismissal is unfair! The only time its not unfair when the code isn't followed, is when its a minor issues, such as not being possible to have an independent manager not connected to or aware of alleged incident in questions, such as in small businesses like an independent shop. Or where its simply not reasonably practical for the employer to adhere to all parts of the code! But this is a big national supermarket change that we are talking about, and there is no reason why they could not adhere to the code in full, and ignoring medical evidence supporting the employee is completely unreasonable, not even a court of law would do that, and therefore the tribunal will not either!

As for ethical, well sorry but acting unreasonably or unfairly is not ethical behavior on the employers part! And no one is suggesting the use of emotional blackmail. As for myself, i merely support the OP in that they should appeal (as per their right to do so, regardless as to overall reason for dismissal) and that they have perfectly reasonable reason in which to appeal. If this wasn't a case involving theft, but something else that was a result of the OP's medical condition, would any of us even be having this debate? no we'd all be encouraging the OP to appeal the dismissal on the basis the employer ignored all medical supporting evidence and that the disciplinary process was therefore unfair! Hopefully the result of the appeal means reinstatement with a warning, and a lesson learned by the OP i.e. not to steal again!

[stevemLS]

Re: Got dismissed today. Advice please. .

Sorry didn't see that bit about occupational health involvement 3 years ago. Though they still had a duty of care towards him, and they clearly knew how serious is physical health conditions were and should have still had regular updates even if it was just 1 per 6-12 months to ask about his health and mental state.

Trying multiple quote thing again, it may all go wrong.

As I said we will not agree on this.

This is an employment relationship, not a nurse maid.

How long do you think these updates shoulld have gone on for? In perpetuity.

As far as employer was concerned, yes they were aware of condition 3 years ago. Provided OH support and monitoring until fitness established. No evidence of ongonig difficulty. Duty discharged.

As per no evidence to suggest his frame of mind led to stealing. Sorry but medication can effect the thought processes and cause people to do things they would not normal do. Same can be said for mental health issues such as depression, people are known to do things as a call for help, that they would not do if they were sound of mind. Fact is the employer didn't even look at the OP's medical reports at the disciplinary and completely ignored them, when in those reports could well have been the evidence you say doesn't exist, yet could have easily proven diminished responsibility. A lot of employers will have simply issued a warning rather than dismiss an employee in such cases if they were made aware of the employees medical/mental issues during or before the disciplinary!

Yes, medication CAN cause side effects, however, if it is to be relied upon it is for the employee to show that it DID in this instance and there is still not a shred of evidence that it did. The way medication licencing works in the UK is that if a single case of a particular side effect is documented it must be disclosed despite the fact that there may be thousands, even millions of people taking it without such effects. It would be for the employee to show that they were in fact suffering from that side effect AND that it was responsible for the misconduct. The employer is under absolutely no obligation as part of a fair disciplinary process to conduct research into the psycho-pharmacological profile of any particular medication.

Legislation you coded - Well the employer didn't act reasonably during the disciplinary, therefore they unreasonably failed to adhere to the code, therefore the dismissal is unfair! The only time its not unfair when the code isn't followed, is when its a minor issues, such as not being possible to have an independent manager not connected to or aware of alleged incident in questions, such as in small businesses like an independent shop. Or where its simply not reasonably practical for the employer to adhere to all parts of the code! But this is a big national supermarket change that we are talking about, and there is no reason why they could not adhere to the code in full, and ignoring medical evidence supporting the employee is completely unreasonable, not even a court of law would do that, and therefore the tribunal will not either!

On the OP's own account they had a simple letter from their GP listing diagnoses and medications. No attempt to link it with behaviour was made and the OP has shifted significantly in what they now seek to introduce. I don't believe any of the "departures" from the code here were "unreasonable".

As for ethical, well sorry but acting unreasonably or unfairly is not ethical behavior on the employers part! And no one is suggesting the use of emotional blackmail. As for myself, i merely support the OP in that they should appeal (as per their right to do so, regardless as to overall reason for dismissal) and that they have perfectly reasonable reason in which to appeal. If this wasn't a case involving theft, but something else that was a result of the OP's medical condition, would any of us even be having this debate? no we'd all be encouraging the OP to appeal the dismissal on the basis the employer ignored all medical supporting evidence and that the disciplinary process was therefore unfair! Hopefully the result of the appeal means reinstatement with a warning, and a lesson learned by the OP i.e. not to steal again!

As you are well aware, that is not the ethical stance I was taking and I don't believe this is an accurate summation of the employers conduct.

So in order to get work on my side and give a nutral reference could I say the company didn't look after my welfare and check on my progress like hospital visits. Due to my health deteriating thus affecting my mental health which may have lead to my dishonesty I feel work at least can help my future? My GP I'm sure would write to them saying it's a miracle I have performed the role with my condition and that I have done so well staying sober and getting my life back on track. A negative reference is only going to lead down one path and that path could cause a relapse. Worth a shot?

- - - Updated - - -

I only have 4 days left to appeal.

This is a proposed attempt at emotional blackmail.

- - - Updated - - -

(Hey, I did it, multiple quotes!)

[FlamingParrot]

Re: Got dismissed today. Advice please. .

There is a huge difference between an appeal (following internal procedure) and an ET claim. In the vast majority of cases, an internal appeal (not to be confused with an appeal to the EAT) is just a formality and I've not heard of anyone getting reinstated or a settlement offered as a result of the appeal. ET procedure has changed though the years, back in 2003 I had to appeal internally before submitting a claim, in 2008/09 you were supposed to submit a grievance before a claim, these days we have early conciliation.

I see no harm in an appeal following internal procedure since it costs nothing and you've got nothing to lose. It could be an opportunity to negotiate a neutral reference if done in the right way. My appeal was a three hour near monologue where I recited all those arguments I'd previously put forward in a pile of letters and dozens of emails. As I was going to submit an ET claim I didn't make any attempt to negotiate at that point, just wanted it all on the record for my case since the requirement to prepare witness statements for ET cases was introduced years later, my appeal was my WS.

To be brutally honest, I don't see much prospect of success if this case went to the Tribunal though, at that time I was given just a 20% chance of success even when the arguments for dismissal were all to do with stuff I'd posted online (promotional/work examples, not criticism of the company I worked for), intellectual property, etc. and nowhere nearly as serious as stealing, yet I've got a letter from an in-house shyster accusing me of "theft" (of intellectual property, there was nothing to steal other than CDs). :scared:

[cupidstunt]

Re: Got dismissed today. Advice please. .

I understand in past cases, an ET has found that discipline processes where not followed correctly, but the ET stated that the offence was such that it would have lead to dismissal anyway.

[FlamingParrot]

Re: Got dismissed today. Advice please. .

I understand in past cases, an ET has found that discipline processes where not followed correctly, but the ET stated that the offence was such that it would have lead to dismissal anyway.

Yes, that was also my understanding. :ohwell:

[teaboy2]

Re: Got dismissed today. Advice please. .

Yes, that can be the case, but the tribunal would have to take into account the mitigating circumstances and determine if the employer had failed in their duty of care (i.e. someone would have or should have spotted the OP was struggling mentally) and if the employers would have given a lesser punishment if they had taken into account the medical evidence/statements supporting the OP in his defence to the act, or had known he was struggling mentally prior to the act! They would also have to take in to account his previous record prior to the incident in question too.

If someone is acting out of character, then its very likely a colleague or manager will have spotted that, and failure to act after spotting it is a failure to ensure the welfare of the employee!

[FlamingParrot]

Re: Got dismissed today. Advice please. .

Yes, that can be the case, but the tribunal would have to take into account the mitigating circumstances and determine if the employer had failed in their duty of care (i.e. someone would have or should have spotted the OP was struggling mentally) and if the employers would have given a lesser punishment if they had taken into account the medical evidence/statements supporting the OP in his defence to the act, or had known he was struggling mentally prior to the act! They would also have to take in to account his previous record prior to the incident in question too.

If someone is acting out of character, then its very likely a colleague or manager will have spotted that, and failure to act after spotting it is a failure to ensure the welfare of the employee!

I'm sorry but I just have to ask, [MENTION=19071]teaboy2[/MENTION], do you really think this case would have a chance of success at the ET?

I know the stats say only 1% of claimants get costs orders but they are a possibility when the claim is considered not to have merit. :mmph: My solicitor warned me about them all those years ago and, knowing the Magic Circle firm my opponent had hired, and their fee$, :wof: I swiftly agreed to the COT3!

[Berniethebolt]

Re: Got dismissed today. Advice please. .

Wouldn't this be where the union come in . I mean I know that since the milk snatcher was around unions have become far less useful but that is what you pay your subs for

[teaboy2]

Re: Got dismissed today. Advice please. .

I'm sorry but I just have to ask, @teaboy2, do you really think this case would have a chance of success at the ET?

I know the stats say only 1% of claimants get costs orders but they are a possibility when the claim is considered not to have merit. :mmph: My solicitor warned me about them all those years ago and, knowing the Magic Circle firm my opponent had hired, and their fee$, :wof: I swiftly agreed to the COT3!

I'm not saying he should take it to ET, but to use the the mitigating circumstances, employers failure to acknowledge and consider his medical evidence at disciplinary, and failure to in duty of care (reference some one most have known he wasn't his usual self) as leverage at the appeal. Which is the stage we are at.

My last post was meant as an example as to what an ET would take into consideration when deciding if the employer had acted fairly and if they had breached duty of care etc etc! - But nothing more than that.

But there is, as you know, a good chance that if OP did decide to go to tribunal that the supermarket wouldn't want to risk losing either and agree to a pre-hearing settlement.

[Acjb007]

Re: Got dismissed today. Advice please. .

We don't have a union at my company. I'm handing in my letter of appeal tomorrow. I have nothing to lose. I've spoken to a specialist in disciplinary hearings and he said most of my grounds for unfair dismissal are weak and theft is a serious issue. However he agreed that as my medical history was irrelevant they have broken the disciplinary process and have even discriminated against me by not taking my condition seriously. Although he agrees they will not reinstate me he's pretty certain they will at least pay me off or I'll be awarded compensation.

Please please don't let this debate get any more heated. I'm under no illusion that what I've done is incredibly bad but I deeply regret it and will never make this mistake again. I'm seeking professional help to find out why I stole and my doctor is doing some tests to find out my mental health state. He's also writing a letter to work to support my claims that liver disease can have terrible effects on a person's actions. My liver disease specialist is also going to write to work in great detail which will be in my favour.

The moral of the story is do not steal. It's not worth it. At the end of the day everything happens for a reason and maybe the outcome will have a positive ending for me.

Thanks for all your comments and taking the time to reply.

[FlamingParrot]

Re: Got dismissed today. Advice please. .

Please please don't let this debate get any more heated. I'm under no illusion that what I've done is incredibly bad but I deeply regret it and will never make this mistake again. I'm seeking professional help to find out why I stole and my doctor is doing some tests to find out my mental health state. He's also writing a letter to work to support my claims that liver disease can have terrible effects on a person's actions. My liver disease specialist is also going to write to work in great detail which will be in my favour.

We are not here to judge, what we were debating was not how bad or otherwise was what you did but what your options are and your chances of success as well as any risks. It would be irresponsible of us to just tell someone to go ahead and issue a claim without looking at the situation from various angles and trying to figure out what a tribunal would make of the whole thing, which isn't easy. :ohwell: We were just trying to do a bit of risk assessment here. :thumb:

[teaboy2]

Re: Got dismissed today. Advice please. .

We don't have a union at my company. I'm handing in my letter of appeal tomorrow. I have nothing to lose. I've spoken to a specialist in disciplinary hearings and he said most of my grounds for unfair dismissal are weak and theft is a serious issue. However he agreed that as my medical history was irrelevant they have broken the disciplinary process and have even discriminated against me by not taking my condition seriously. Although he agrees they will not reinstate me he's pretty certain they will at least pay me off or I'll be awarded compensation.

Please please don't let this debate get any more heated. I'm under no illusion that what I've done is incredibly bad but I deeply regret it and will never make this mistake again. I'm seeking professional help to find out why I stole and my doctor is doing some tests to find out my mental health state. He's also writing a letter to work to support my claims that liver disease can have terrible effects on a person's actions. My liver disease specialist is also going to write to work in great detail which will be in my favour.

The moral of the story is do not steal. It's not worth it. At the end of the day everything happens for a reason and maybe the outcome will have a positive ending for me.

Thanks for all your comments and taking the time to reply.

And that is something else you use as leverage too in the appeal! i.e "i have spoken to a specialist and he said", then repeat what the specialist told you - Add it to your appeal letter before you hand it in. The more doubt we as per their actions towards you that you can plant firmly in their minds, the less likely they are to want to risk you potentially taking them to tribunal over their actions. Which means a pay out for you or if your lucky, reinstatement... Though no doubt with conditions attached regarding regular medical updates/meetings and more support from the employer and maybe changes to your role i.e job in warehouse rather than on counter or shop floor. Though reinstatement is the less likely of the two!

We are not here to judge, what we were debating was not how bad or otherwise was what you did but what your options are and your chances of success as well as any risks. It would be irresponsible of us to just tell someone to go ahead and issue a claim without looking at the situation from various angles and trying to figure out what a tribunal would make of the whole thing, which isn't easy. :ohwell: We were just trying to do a bit of risk assessment here. :thumb:

Totally agree, it is deffo more a risk assessment and available options debate now to work out the best way to approach this so we can help the OP as best as we possibly can, as i think we are all past debate on stealing and the drinking. Hopefully the appeal goes well so the OP can get on with his life without having to worry anymore about whats happen!