Misconduct Appeal and viability of Employment Tribunal - advice please?

**teaboy2** · 20th January 2016, 17:41:PM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

If they have acted in breach of contract or taken unreasonable amount of time to complete the disciplinary procedure then yes you have a case, especially if your daughter had done nothing wrong - I assume the allegation is mostly hear-say anyway. but i do find a written warning when no previous verbal had been given to be over the top for allegation of rudeness or aggressive language/acts towards to a co-worker. Also how was the incident increased to being more serious than it was intially deemed, what reasons if any did they give for this.

Also have they followed Acas code of practice: disciplinary and grievance procedures to the letter? It sounds like they have not.

It also sounds like she may have a claim under the equaility act 2010 for discrimination as a result of the police force refusing her request for reasonable adjustment to prevent her mental health being adversely effected!

So i'd say if your gut feeling tells you they wee in the wrong and have treated your daugther badly or unfairly and if she honestly is innocent of the allegation then go for it. Same if she was guilty of it, as there failure to make reasonable adjustment by transfering her would be deemed mitigating circumstances resulting in her lashing out!

**Guest** · 20th January 2016, 19:50:PM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Dear Teaboy2 - Thank you for your views.

I assume the allegation is mostly hear-say anyway.

The PSI was in my home investigating a criminal report I made to the police 12 days earlier. The PSI said it was entirely civil and nothing to do with the police. My daughter (11 1/2 years experience advising public on points of law) disputed what the PSI said. No raised voices, no shouting, no swearing, merely a professional difference of opinion. The PSI relayed what occurred to her manager, a police sergeant, who told her to write a report and used the report to complain about my daughter. Coincidently ten days earlier I had complained that the police were not taking seriously the criminal report I had made to the police and I found out months down the line that on the same day the PSI was in my house and her sergeant had told her to write the report, my complaint had been recorded as a complaint against the sergeant.

Also how was the incident increased to being more serious than it was intially deemed, what reasons if any did they give for this.

She was not notified that the allegation had been increased to being more serious than originally deemed. She was served with the Misconduct papers PS15 on 8 May, the investigation was concluded on 12 November and the Misconduct meeting papers were posted that same day to my daughter. On examination, we noticed a further Misconduct allegation paper PS21 also dated 12 November with the different and more serious allegation. When she was sent the Misconduct meeting findings, PS36, soon after the 4 December Misconduct meeting, the allegations were essentially the same as on the 12 November PS21.

Looking closely at the investigation evidence pack, there is a report dated 21 July from a supervisor saying that my daughter was rude during the investigation meeting. My daughter denied this, at the time she was completely broken, unable to do her job, shocked at what was being alleged, horrified that an assault and public order offence against us could be turned around to become a misconduct allegation against her. It looks as though this report may be the reason for the increase in the charges but this has never been put to her and I can only assume this from close study of the evidence. In retrospect, she accepts that her distress has apparently been misconstrued as rudeness but both the supervisor and the HR interviewer knew (as my daughter found out at the 4 December Misconduct meeting) that her multiple requests for temporary redeployment on medical grounds had been refused.

Also have they followed Acas code of practice: disciplinary and grievance procedures to the letter? It sounds like they have not.

No, ACAS code of practice has not been followed and at an interview after she left, a police superintendent asked my daughter if she had appealed the decision on the grounds of HR's failure to follow procedures. The failure to follow procedures is included in her appeal.

It also sounds like she may have a claim under the equaility act 2010 for discrimination as a result of the police force refusing her request for reasonable adjustment to prevent her mental health being adversely effected!

Yes, your comment is interesting. She was diagnosed with stress in early May soon after being told about the misconduct procedures, diagnosis increased to stress and anxiety, returned to work on 22 June on reduced hours, found it completely impossible to do her job and had breakdown after breakdown. Asked several times for the temporary transfer, which was refused. There was a further incident on 29 June from the February assailant, my daughter after three rest days, returned to work on 2 July, asked again for temporary redeployment, was refused again and was sent home by the supervisor mentioned above - who knew that the Inspector had blocked any temporary redeployment - and in sending her home told my daughter to "sort herself out, come back and smile" (or words to that effect)

So i'd say if your gut feeling tells you they wee in the wrong and have treated your daugther badly or unfairly and if she honestly is innocent of the allegation then go for it. Same if she was guilty of it, as there failure to make reasonable adjustment by transfering her would be deemed mitigating circumstances resulting in her lashing out!

This is a mitigating point that we missed in preparing the appeal - that the supervisor who on 21 July complained about her rudeness, knew and was instrumental in refusing her reasonable request for temporary medical redeployment, as did the HR interviewer also know.

Thank you again. Your information is a great help.

**teaboy2** · 23rd January 2016, 14:33:PM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Keep us updated or if you have any more questions feel free to ask.

**Guest** · 25th January 2016, 23:48:PM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Her appeal was today, she missed it due to W********R being gridlocked due to the presence of film crews and an army of extras. She phoned requesting the appeal should be decided in her absence. Not ideal but the city was manic! We were there for two hours trying to navigate around closed street and nowhere to park.

Her appeal consisted of twenty significant errors - there may have been more but we eventually stopped looking.

Main points
Contravention of Police Policies and Procedures re Fairness and Equality - "All staff and particularly those with supervisory responsibilities...have a duty to ensure that no one is subjected to victimisation in the workplace" . (There is evidence that she was victimised).

The refusal to look for a temporary role on medical grounds (On ACAS' advice was a serious breach of contract).

Omission of significant evidence from the material provided to both her and the panel at the 4 Dec Misconduct meeting. (UKEAT case Archer v Solvent Resource Management ltd).

The pre-determined conclusion of the HR investigator that the allegation is upheld - despite Force Policy and Procedure that one named panel member at the Misconduct meeting is responsible for making the decision.

Failing to tell her that the misconduct allegation was changed after the misconduct investigation was concluded and imposing punishment for the later more serious allegation instead of the original allegation that was the subject of the investigation (UKEAT O'Farrill v New Manage ltd t/a Hooks gym, London Shootfighters).

No evidence that goes far enough to prove the allegation , given the contradiction between the opinions of the two PSI's who said one thing, and that of my daughter and myself who said something different (UKEAT Salford Royal NHS Foundation Trust v Roldan 2010 EWCA Civ 522).

She also included a statement to the effect that the misconduct allegation against her was nothing more than the reaction of a disgruntled police sergeant in retaliation for a complaint that I had made that, unbeknown to my daughter, had been recorded against him (supported by evidence)

As a side issue to the misconduct process, she was able to include in her appeal documents the full sequence of events starting with her assault and the public order against me, police failures, the way they spun this into a misconduct allegation against her, etc - a nightmare story that I wouldn't wish on anybody. If she decides a tribunal is appropriate, perhaps the police will no longer be able to hide from what they did.

Thank you everyone who so generously provided opinions and advice when I really did not know where to turn. I'll let you know the appeal outcome and what she decides about where to go with this.

**teaboy2** · 26th January 2016, 06:04:AM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Originally posted by justace View Post

Her appeal was today, she missed it due to W********R being gridlocked due to the presence of film crews and an army of extras. She phoned requesting the appeal should be decided in her absence. Not ideal but the city was manic! We were there for two hours trying to navigate around closed street and nowhere to park.

Her appeal consisted of twenty significant errors - there may have been more but we eventually stopped looking.

Main points
Contravention of Police Policies and Procedures re Fairness and Equality - "All staff and particularly those with supervisory responsibilities...have a duty to ensure that no one is subjected to victimisation in the workplace" . (There is evidence that she was victimised).

The refusal to look for a temporary role on medical grounds (On ACAS' advice was a serious breach of contract).

Omission of significant evidence from the material provided to both her and the panel at the 4 Dec Misconduct meeting. (UKEAT case Archer v Solvent Resource Management ltd).

The pre-determined conclusion of the HR investigator that the allegation is upheld - despite Force Policy and Procedure that one named panel member at the Misconduct meeting is responsible for making the decision.

Failing to tell her that the misconduct allegation was changed after the misconduct investigation was concluded and imposing punishment for the later more serious allegation instead of the original allegation that was the subject of the investigation (UKEAT O'Farrill v New Manage ltd t/a Hooks gym, London Shootfighters).

No evidence that goes far enough to prove the allegation , given the contradiction between the opinions of the two PSI's who said one thing, and that of my daughter and myself who said something different (UKEAT Salford Royal NHS Foundation Trust v Roldan 2010 EWCA Civ 522).

She also included a statement to the effect that the misconduct allegation against her was nothing more than the reaction of a disgruntled police sergeant in retaliation for a complaint that I had made that, unbeknown to my daughter, had been recorded against him (supported by evidence)

As a side issue to the misconduct process, she was able to include in her appeal documents the full sequence of events starting with her assault and the public order against me, police failures, the way they spun this into a misconduct allegation against her, etc - a nightmare story that I wouldn't wish on anybody. If she decides a tribunal is appropriate, perhaps the police will no longer be able to hide from what they did.

Thank you everyone who so generously provided opinions and advice when I really did not know where to turn. I'll let you know the appeal outcome and what she decides about where to go with this.

You'd be correct, once tribunal procedure is started it becomes a matter of public record, so yes it would be out their in the open. Though probably not widely reported on by the media till after the case has been decided.

As for the Police Sargent, has your daugther considered making a formal grievance against the Police Sargent for making spurious/false and vexatious accusations of misconduct against her, that may amount to bullying/harassment in the work place and victimisation? Both amounts to serious misconduct (not as bad as gross misconduct, but still serious and dismissable for) - If not, then she should do, as it would put more preassure on the police, and would give your daugther more ammo to throw at the police force, at tribunal, if they fail to follow the grievance procedure/policies to the letter - Which in turn would support her original claims against the police force. Basically give them the rope, but let them decide if they want to use the rope to pull themselves out of the hole, or if they want to hang themselves with it! 90% of the time the employer hangs themselves with it!!

**Guest** · 27th January 2016, 18:28:PM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

My daughter lost her appeal. They spun everything around to discredit her and find in their favour. Two of their reasons are given here. There are eighteen more of the same. As Teaboy2 raised, give them enough rope etc!

My daughter has put in the grievance that Teaboy2 suggested. Thanks for that suggestion.

Try this...
One of her points of appeal was a letter in which a DCI (the final appeal in a complaint I made) wrote " There is no record that your daughter is subject to Misconduct Procedure". Police record ALL complaints, including misconduct allegations, on the Centurion computer system (source: Professional Standards Department Standards Operating Procedures - available on the internet). In my house on December 16, a DCI, (Area Commander) discussing my daughter's multiple grievances confirmed that the appeals DCI had lied in that letter and advised me to complain about her on the grounds of Deceptive Misconduct.

The Misconduct appeals decider rejected the words of the DCI who wrote in the letter to me that "There is no record that your daughter is subject to Misconduct Procedure" saying that this has been taken out of context.

and another one:
In response to my appeal below, ( Salford Royal NHS Foundation Trust v Roldan. 2010. EWCA Civ 522) the decision was:-

The decision on a misconduct meeting is based on the balance of probabilities and does not have to be proven.

Further to the decision made re Allegation one that "on 23 February 2015 I behaved inappropriately towards police staff investigators Fay and Crate, being rude and aggressive in my manner", I submit the following point of appeal :
The subjective opinion of PSI's Fay and Crate is not backed by any evidence that goes far enough to prove that it is more likely than not that my behaviour fell below the standard that was expected from me. There is a clear conflict of evidence between the opinions of PSI's Fay and Crate versus the opinions of me and my mother and I request that the allegation is dismissed under a point of law as per Salford Royal NHS Foundation Trust v Roldan. 2010. EWCA Civ 522)

**teaboy2** · 28th January 2016, 00:44:AM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

The problem they now face is proving they established enough evidence to give grounds for reasonable belief on balance of probability. So they are wrong when they say it doesn't have to be proven, as it does have to be proven on balance of probability by the evidence and estabilished facts, they have not established the facts and as its sounds like most evidences is ones word againsts an others (hearsay) then they have not established anything let alone facts or truth! Therefore there appears to be no grounds to find any guilt based on balance of probability as they have no evidence or established facts to support the outcome of the appeal!

**Openlaw15** · 28th January 2016, 11:50:AM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Originally posted by justace View Post

My daughter lost her appeal. They spun everything around to discredit her and find in their favour. Two of their reasons are given here. There are eighteen more of the same. As Teaboy2 raised, give them enough rope etc!

My daughter has put in the grievance that Teaboy2 suggested. Thanks for that suggestion.

Try this...
One of her points of appeal was a letter in which a DCI (the final appeal in a complaint I made) wrote " There is no record that your daughter is subject to Misconduct Procedure". Police record ALL complaints, including misconduct allegations, on the Centurion computer system (source: Professional Standards Department Standards Operating Procedures - available on the internet). In my house on December 16, a DCI, (Area Commander) discussing my daughter's multiple grievances confirmed that the appeals DCI had lied in that letter and advised me to complain about her on the grounds of Deceptive Misconduct.

The Misconduct appeals decider rejected the words of the DCI who wrote in the letter to me that "There is no record that your daughter is subject to Misconduct Procedure" saying that this has been taken out of context.

and another one:
In response to my appeal below, ( Salford Royal NHS Foundation Trust v Roldan. 2010. EWCA Civ 522) the decision was:-

The decision on a misconduct meeting is based on the balance of probabilities and does not have to be proven.

Further to the decision made re Allegation one that "on 23 February 2015 I behaved inappropriately towards police staff investigators Fay and Crate, being rude and aggressive in my manner", I submit the following point of appeal :
The subjective opinion of PSI's Fay and Crate is not backed by any evidence that goes far enough to prove that it is more likely than not that my behaviour fell below the standard that was expected from me. There is a clear conflict of evidence between the opinions of PSI's Fay and Crate versus the opinions of me and my mother and I request that the allegation is dismissed under a point of law as per Salford Royal NHS Foundation Trust v Roldan. 2010. EWCA Civ 522)

Can you post here the entire final appeal's response here but without names, addresses etc?

**Guest** · 29th January 2016, 00:36:AM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Sorry for being so unthoughtful, have just realised it is possible to post as an attachment.

Attached Files

Appeal decision.rtf (30.3 KB, 1 view)

**Openlaw15** · 29th January 2016, 10:45:AM

Re: Misconduct Appeal and viability of Employment Tribunal - advice please?

Justace's Entire Final Appeal

"Dear Ms

Outcome of Appeal against written warning for Misconduct under theMisconduct for Police Staff Procedure.

I am writing to confirm the outcome of your appeal against the written warningreceived in your misconduct meeting on the 4th December 2015. Your appealmeeting was scheduled for 10.00 on 25th January 2016. I was advised that youhad been unable to park in xxxxxxxxxx and confirmed with you via a telephonecall at 10.50 am that you were happy for the meeting to be heard in yourabsence.
You were advised of your right to representation but confirmed that you werehappy to proceed in the absence of your representative who was unable to attendthis meeting.

Your appeal was based on the following grounds:

The finding and misconduct outcome was unreasonable

There is evidence that could nothave reasonably been considered at the misconduct proceedings which could have materially affected the findings or decision on misconduct action; There was a serious breach of procedures or other unfairness which could have materially affected the finding or decision on misconduct action.

The panel consisted of xxxxxxxxxxxxxx, Deputy Head of Contact Management for xxxxxxxxx Constabulary and xxxxxx xxxxxx Police and xxxxxxxx xxxxxxxxxx, Senior HR Advisor.

Appendix E from the Misconduct for Police Staff procedure states:
The appeal is not a repeat of the misconduct meeting. It will only examine those parts in question which may affect the finding or outcome.
To do this, the Appeals Officer will consider:
Whether the finding is unreasonable or in doubt due to new evidence
Whether the finding was too severe with regard to the circumstances of the case
Whether the finding/outcome was ‘unsafe’ due to procedural unfairness or prejudice to the staff member which may have materially influenced the outcome.

The Appeals Officer can reverse or confirm the finding/outcome or amend certain conditions of the outcome. They cannot increase the sanction.
The panel read all of the paperwork from the original meeting as well as your additional submissions.

Appeal point 1:

The 04 December 2015 Misconduct meeting Panel knew the background but failed to consider that I alone have been singled out for misconduct proceedings whilst the Professional Standards Department refused to consider my complaints about TDS xxxxx, PSI xxx and others. Taken overall, I consider that I have been victimised and this is contrary to FPP 23900 - Fairness and Equality in Employment, 3.11 All staff, and particularly those with supervisory responsibilities, have a duty …to ensure that no one is subject to victimisation in the workplace". Please see also para's 7 & 9.

This point is outside the scope of this meeting and is not part of theappeal against the sanction and was considered as part of the PSD process andyour ongoing grievance.

Appeal point 2:

The Panel is wrong in saying (PS36) that "It must be noted that the OSR written by the PSI's is not something they have ever felt the need to do before or subsequently". PSI xxx 15343 and not PSI xxxxx wrote the Supplementary Occurrence Report and PSI xxx did not write her Supplementary Occurrence Reporton her own volition - she is on record as having told Unison that she wrote her16.07 on 23 February Supplementary Occurrence Report on her manager's advice.It would seem that TDSxxxxx is the manager who told PSI xxx to write the report and that he then used the report for the purpose of complaining about me. I have to ask if TDS xxxx's action in so doing was deliberate and a tit-for-tatresponse to a complaint my mother, Mrs xxxxxxx, made on 13 February - which was recorded on 23 February 2015 as a complaint about TDS xxxxx (DCI xxxxx xxxxxx04 August appeal decision letter).

To clarify the outcome letter, it was PSI xxx who wrote the SOR. Under the Police Code of Ethics Standards of Professional Behaviour (point 10), the standard states I will report, challenge or take action against the conduct of colleagues which has fallen below the standards of professional behaviour. PSIxxx was very concerned at your lack of ability for self control in this circumstance and addressed this concern appropriately with her line manager.
In the Preamble of the Code of Ethics, point 1.4.2 under Responsibilities itstates:
You are expected to use the Code to guide your behaviour at all times – whetherat work or away from work, online or offline.

Appeal point 3:

Amongst the many factual errors in her report, including the misspelling of my name some 35 times, PSI xxx expressed her opinions that:
"It concerns me that someone with her aggression and general behaviour is employed by HC to deal with members of the public and It is my opinion thatxxxxxxx has both started and fuelled this disagreement by her behaviour at the time. She is completely unreasonable and if her behaviour today is anything togo by she is responsible for causing issues at the address"
Is it appropriate or even fair that PSI xxx, investigating potential assaultand public order offences, called into question the victim's ability (myability) to do my job based on the PSI's perceptions of my reactions at a timewhen I was understandably distressed, vulnerable and in my own home?Furthermore, why was PSI xxx reporting on her personal opinions instead offacts?

As above, the Code of Ethics point 10 relates to this in that improperconduct and behaviour should be reported. PSI xxx and xxxxx were acting withinthe guidelines of Standards of Professional Behaviour in drawing theirmanager’s attention to this behaviour

Appeal point 4:

Misconduct proceedings against me have been on-going since xxxxxxx xxxxxx,Business Support Manager PSD, initiated these on 27 February 2015 (Appendix14). The Constabulary has put me through hell, wrecking my health in theprocess, yet even though all investigations are recorded on Centurion frominitial receipt to the final outcome, two senior PSD Police Officers deny thatI was subject to the Misconduct procedure - Chief Superintendent xxxxxxxxxxxxxx writing to Mrs xxxxxxx on 17 June that "No person has a case toanswer for Misconduct or Gross Misconduct" and DCI xxxxx xxxxxx writing toMrs xxxxxxx on 4 August that "There is no record that your daughter issubject to Misconduct Procedure".

I have reviewed this with PSD and received the following information. The17th June letter stated that “no person has a case to answer for Misconduct orGross Misconduct”- this is accurate as it was directly relating to the threeofficers that Mrs Kellett had complained about; it was not related to you,xxxxx.

The 4th August letter excerpt stating “There is no record that your daughter is subject to Misconduct Procedure” has been taken out of context. The letterwas sent as a ‘not upheld’ appeal letter to Mrs xxxxxx following her appealagainst the findings of the above investigation. One aspect of the appeal wasin respect of alleged comments made on an RMS Supplementary Occurrence log asfollows.
*You state that your daughter has beenaccused of misconduct in the Supplementary Occurrence Report on 44150048876.
*Please note that that this comment is from theDCI's letter and not a statement I made.

The appeal findings of DCI xxxxxx state:
I can find no record on the Supplementary Occurrence Report* that your daughter has been accused of misconductnor is there any record on the relevant computer system with regards tomisconduct investigations on staff. The Supplementary Occurrence Reportdescribes aggressive behaviour that your daughter was allegedly involved in andwitnessed by PSI xxx. She is entitled to make such comments so long as they aretrue and accurate. You have not told me that they were untrue or inaccurate. Ido not uphold your appeal.
*Misconduct, along with all complaints, is recordedon the Centurion system

The letter of 4th August is therefore not stating that her daughter was notsubject to misconduct but that the Supplementary Occurrence log did not containany record that her daughter had been accused of misconduct, which was what Mrsxxxxxxx had alleged.

Appeal point 5:
The Investigating Officer's report (appendix 3, page 2) implies that I knewabout the Misconduct allegation and had indicated by 30 April that I wanted thePS15 served at xxxxxx instead of xxxxxxxxxxx xxxxxxx. This is a deviation ofthe truth since the first I knew about the Misconduct allegation was atelephone call from xxxxxx xxxxx on 29 April, followed by an email on 01 May.

Your point indicates you were aware of the Misconduct allegation on the 29thApril, which is prior to the 30th. This has no bearing on the outcome of themisconduct meeting.

Appeal point 6:

Professional Standards proceeded with the Misconduct allegation against me(that was initiated by TDS xxxxx, was progressed via supervisors and brought tothe attention of Professional Standards by Inspxxxx xxxxxx) but refused toconsider my complaint about TDS xxxxx, PSI xxx and others - telling me that Ican use the grievance process. It is grossly unfair that PSD invoked misconductproceedings against me (with appropriate punishment if found guilty) but toldme to put my complaints about TDS xxxxx, PSI xxx and others in a grievance(which carries no punishment).

This has no bearing on the outcome of the misconduct meeting. However, I canconfirm that if misconduct is found in the course of a grievance investigation,appropriate disciplinary action will be taken.

Appeal points 7-9:

During the period 27 June - 2 July, I asked supervisors including xxxxxx xxxxxthat I be temporarily transferred out of FEC to aid my return to work and inparticular whilst the Misconduct procedure was on-going. My requests wererepeated in letters to Inspectorxxxx xxxxxx, supervisorxxx xxxxxx and others.All met with zero response. It was disclosed at the Misconduct meeting that notonly did Inspector xxxx xxxxx (FEC) send to Professional Standards departmentTDS xxxxx's complaint that I "was not fit to remain in a public facingrole" but that Inspector xxxxxx also blocked my multiple requests fortemporary transfer* to another department whilst misconduct allegations wereongoing. Given that (as was disclosed during the Misconduct meeting) I couldhave been temporarily transferred to the Alarm and Administration department orto a few other departments in which there were vacancies, it isincomprehensible that Inspector xxxxx nevertheless insisted in keeping me in arole in FEC that I was alleged to be unfit to fulfil. Did Inspector xxxxxintend that by keeping me in a public facing role within FEC, I would becomeaggressive with the public and colleagues so that he could then add additionalcomplaints about me (as, of course, out-of-room supervisor xxxxxx xxxxx did bymeans of her 21 July G31)?
* I understand that Insp xxxxx could have legitimately refused my request fortemporary transfer if I had been underperforming in my FEC role. He had no suchexcuse given that Unison obtained FEC statistics that confirm I was one of thehighest and most reliable performers in the role.

If my reasonable request for temporary transfer out of FEC had been actioned,it would have benefited my employer to have me return to work whereas thecombination of comments made by PSI xxx in her Supplementary Occurence Reportthat "It concerns me that someone with her aggression and generalbehaviour is employed to deal with members of the public...and...it is myopinion that xxxxxx (sic) has both started and fuelled this disagreement...andis responsible for causing issues at the address" and Inspector xxxxxx'insistence that I remain in FEC made me so ill and so distressed that I, ondoctor's advice, eventually saw no alternative other than to resign.

It also came to light during the misconduct meeting that xxxxx xxxxx , the HRinvestigator, and xxxxxx xxxxx the out-of-room supervisor who twice refused myrequest for temporary transfer and told me to go home, sort myself out and comeback and smile (or words to that effect) both knew that Inspector xxxxx hadblocked my request for temporary transfer out of FEC. xxxxx xxxxx failed toconsider that had my request been granted, her investigations into my allegedmisconduct could have been concluded more speedily and at considerably lessexpense to the Constabulary than was the case. xxxxxx xxxxx failed to considerthat, knowing how distressed and ill I became at being required to do a jobthat so many people alleged I was unfit to do and that I had attempted to helpmyself and my employer by removing myself from that situation, Insp xxxx xxxxxxhad nevertheless insisted on keeping me in the role. It is incomprehensiblethat Inspector xxxxxx, xxxxx xxxx and xxxxx xxxxx thought it of more benefit tomy employer to have me off work sick than to have me at work making a usefulcontribution - albeit in a different department. Both xxxxx xxxxx and xxxxxxxxxx have castigated me for rudeness but I was not rude - I was completelybroken by the situation I found myself in through no fault of my own and Isimply could not cope. In my opinion, Inspector xxxxx, xxxxxx xxxxx and xxxxxxxxxx have all breached FPP 23900 - Fairness and Equality in Employment, 3.11All staff, and particularly those with supervisory responsibilities, have aduty …to ensure that no one is subject to victimisation in the workplace"and all victimised me. I note that ACAS considers the refusal to look for analternative role due to workplace stress as a Serious Breach of contract.

These points do not have any bearing of the outcome of the misconductmeeting and are being investigated as part of your grievance.

Appeal point 10:

The misconduct meeting evidence pack omits significant evidence (Appendices 13& 14) which are*emails from mysupervisor xxxxxxxxx xxxxxx (24 or 25 February) to Inspector XXXX XXXXX andfrom Inspector xxxx xxxxxx to Professional Standards (07.39 25 February).Employment Tribunal case Archer and another v Solvent Resource Management Ltd"The employer should provide the employee with all the evidence".

I have spoken to xxxxx xxxxx. All relevant emails have been included as partof the pack. Any other information that you feel has not been considered shouldhave been submitted as part of your appeal.

*The text of the two emails is missing from themisconduct meeting evidence pack.

Appeal point 11:

Disproportionate delay in the Misconduct proceedings - these were commenced on27 February, were passed to HR on 4 March, PS15 served on 8 May 2015 by xxxxxxx, FEC Supervisor E shift in the absence of xxxxxxx xxxxxx, HR. Fromevidence in the Misconduct meeting pack, investigation was apparently notcommenced until July 2015 and was extremely slow. The evidence pack wascompleted on 12 November with the inclusion of PS21 and posted to me that sameday, and the Misconduct meeting took place on 04 December 2015. That is 40weeks in total. Employment Tribunal Case: Towart v Northumberland Tyne and WearNHS Foundation Trust "Most cases should be dealt with in a matter of weeksand unexplained delays in the disciplinary proceedings will always be frownedupon by tribunals. However, more complex or difficult cases (for example, wherefraud or a criminal offence is alleged) will inevitably take longer". Iwas not accused of fraud or a criminal offence, neither was I kept informed asto progress (FPP 33004 - Misconduct for Police Staff: "3.4.7 Theinvestigator must update the staff member on the progress of the investigationat least every 4 weeks).

I acknowledge that this process has taken longer than I would have liked.However, this was due to a variety of reasons including sickness, availabilityof representation etc. xxxxx xxxxx has provided evidence of contact with youthroughout the process. Again, this may not have been as often as you wouldhave liked, but there is evidence to suggest you were kept informed of progress.

Appeal point 12:

Failure to follow procedure re 4 December Misconduct meeting - The decision andoutcome were the sole responsibility of xxxxx xxxxxxxxxx, the senior officerand 1st panel member (FPP 33004 Appendix C). The 2nd panel member, xxxxx xxxxx,was there to advise on procedural matters only and not to influence orrecommend an outcome. The PS36 refers to "we" - as in "We alsotook into consideration…and…we find that on the balance of probability…and…wefeel the need to take into consideration….and…we appreciate that xxxxxx didthis…", clearly confirming that the decision and outcome were not takensolely by xxxxx xxxxxxxxx.

Having spoken to both xxxxx xxxxx and xxxxx xxxxxxxxx, I can confirm thatxxxxx xxxxx, Senior HR Advisor was only in attendance as an advisor to thepanel and that the decision and outcome were taken solely by xxxxx xxxxxxxxx.

Appeal point 13:

Allegation 1 put to me via PS15 on 8 May 2015 was the subject of investigationand is that "On 23 February 2015 your behaviour caused Police Officer's tocomplain about how you presented yourself whilst they were trying to helpresolve a neighbour dispute". PS 21, with its different allegation, wasadded on 12 November after the conclusion of the investigation. The PS36allegation considered and decided by the 04 December 2015 Misconduct meetingpanel was :- "It is alleged that on 23 February 2015 you behavedinappropriately towards police staff investigators xxx and xxxxx, being rudeand aggressive in your manner". Not only is the decision to give me a finalwritten warning - albeit reduced because of circumstances to a written warningvalid for 12 months - disproportionate to the 8 May PS15 allegation that"On 23 February 2015 your behaviour caused Police Officer's to complainabout how you presented yourself whilst they were trying to help resolve aneighbour dispute", but given comments added to the PS36 about horrificbehaviour, unreasonable, rude, irrational, this disciplinary sanction isclearly imposed in respect of the PS36 allegation that "It is alleged thaton 23 February 2015 you behaved inappropriately towards police staffinvestigators xxx and xxxxx, being rude and aggressive in your manner".The decision to give me a final written warning, albeit reduced to a writtenwarning valid for 12 months, is unfair given that any disciplinary sanctionmust be imposed only in respect of the PS15 allegation of 8 May 2015, sincethat was the only allegation properly investigated and put to me as part of theproceedings.

Employment Tribunal Case O’Farrill v New Manage Ltd t/a Hooks Gym LondonShootfighters:- "The employer should explain the alleged misconductclearly and should, throughout the disciplinary process, be consistent in whatit is accusing the employee of. New allegations that come to light during theinvestigatory stage can be added to the process, but any disciplinary sanctionmust be imposed only in respect of allegations that were properly investigatedand brought to the employee’s attention as part of the proceedings".

In any case, I dispute the validity of the PS15, 8 May 2015 Allegation 1; PSI'sxxx and xxxxx are not Police Officers, there was no "neighbourdispute" and the purpose of their visit to my home on 23 February 2015 wasto investigate the criminal report Mrs xxxxxx made to 101 on 11 February 2015.

The allegations were not changed. This point was covered in the misconductmeeting, and it was explained to you how the allegations needed to be made morespecific as to where Standards of Professional Behaviour had been breached.Quite often following an investigation the wording of the allegations can bemade more specific and in this case one of the allegations was dropped.
PSIs are trained police staff Investigators. This has not been considered aspart of the misconduct appeal as it had no bearing on the outcome of themisconduct meeting.

Appeal point 14:

Point 13 equally applies to Allegation 2 which, when put to me on 8 May by wayof PS15 was that "It is alleged that you have breached the Standards ofProfessional Behaviour under Authority, Respect and Courtesy - Postingderogatory comments on face book about the police and their failure to dealwith an incident you reported". Allegation 2 was changed on PS21 dated12/11/15, which was added after the conclusion of the investigation, and thePS36 allegation considered and decided by the 04 December 2015 Misconductmeeting panel was "It is further alleged that you have breached theStandards of Professional Behaviour for Police Staff under DiscreditableConduct as follows:-The perceived negative and derogatory comments made by youon Facebook about the Constabulary may have discredited the police service andundermined public confidence". Any disciplinary sanction must be imposedonly in respect of the PS15 allegation of 8 May 2015. The decision to give memanagement advice in relation to an allegation that is substantially differentto that put to me on 8 May 2015 is unfair and contrary to Employment TribunalCase O’Farrill v New Manage Ltd t/a Hooks Gym London Shootfighters.

See answer to point 13- allegations can become more specific.

Appeal point 15:

The Investigation Officer's Report (Appendix 3, page 6, 4. Conclusions) states"Taking a balanced view of the information provided by the investigation,it is the Investigating Officer's opinion that based on the balance ofprobabilities, the complaint is upheld". PS36 states "In summary wefind that on the balance of probability your behaviour was below that of therequired standard…" It is grossly unfair that I was not only found guiltyby the Investigating Officer, but also found guilty a second time by aMisconduct meeting panel of two (or more?) persons even though the role of thesecond panel member (xxxxx xxxxx) was not to influence or recommend an outcome(FPP 33004).

The role of the Investigating Officer is to investigate and recommend ifthere is a case. The Panel then tests this. Misconduct for Police StaffProcedure item 3.4.8 states:
The Investigator must write a report which summarises their findings andrecommends what action should be taken.
It is the panel that makes the decision.

Appeal point 16:

The unfairness and disproportion of the investigation interviews given that theonly person present at the 18 August interviews with PSI's xxx and xxxxx wasthe HR interviewer, xxxxxx xxxxx, whilst those present at my 21 Julyinvestigation interview (other than my Unison Representative) were xxxxx xxxxxand xxxxxx xxxxx (HR) as well as xxxxxx xxxxx (FEC Supervisor). Clearly I wasdisadvantaged, especially as I was off sick with stress and anxiety caused bythe situation I found myself in through no fault of my own, including (as I nowknow) the deliberate refusal of my request for temporary transfer on medicalgrounds.

Having spoken to xxxxx xxxxx, I understand that it was explained to you inthe investigation interview that xxxxxx xxxxxx was present as a note taker andfor her development. The line manager is normally present at these meetings,which is standard practice. Although xxxxxx was not your line manager she wasthe only person available and is another supervisor within the FEC team.

Appeal point 17:

The unfairness of the 04 December Misconduct meeting in that I was interviewedfirst, then PSI's xxx and xxxxx were interviewed together, then my mother wasinterviewed as a witness. Given that PSI xxxxx attended my home on 23 Februaryas a witness for PSI xxx (Appendix 7, page 2, PSI xxx interview "xxwitnessed it all but she was just there as back up"), it is completelyunfair that PSI xxx and her witness, PSI xxxxx were interviewed together whilstI and my witness, Mrs xxxxxx, were interviewed separately. In fact theimpartiality of xxxxx xxxxx, who was observed fraternising with the two PSI'sfor a considerable length of time before the meeting, is questionable, as isthe fairness of the PSI's apparently adding an accusation about me during theirinterview since I, who was interviewed before the PSI's, was not questionedabout the matter but my mother, who was interviewed after the PSI's wasquestioned about it - this being the added implication that on 23 Februaryafter I left the room and went to my bedroom downstairs, I shouted something backat the PSI's.

Having spoken to xxxxx xxxxxxxxx, I understand that Unison chose to have thePSI’s interviewed together, followed by Mrs xxxxxx, without you present andunderstood the implications of doing so.
Having spoken to xxxxx xxxxx, she has explained that she had been asked byxxxxx xxxxxx to explain the procedure to the PSIs and this is what she wasdoing when you observed her ‘fraternising’ with the PSIs.

Appeal points 18-19:

The Investigating Officer and the Panel completely ignored my assertion that on23 February, I was treated as though I was the instigator and not the victim.My assertion is born out by (1) 18 August interview with PSI xxxxx "xxbelieves that if anyone was the aggressor it would be xx, (2) 18 Augustinterview with PSI xxx "xx …believes that if anyone was the instigator, itwould be xx, (3) PSI xxx's 23 February Supplementary Occurrence Report "Itis my opinion that xxxxxx has both started and fuelled this disagreement…she isresponsible for causing issues at the address". Not only were two policeofficers correct in initially advising that the offences of 11 February werebeing looked at as assault on me and public order on my mother, but myassailant went on to pursue a hate/harassment campaign against me for fourmonths and is in court shortly because of a further offence against me. Apolice officer attending my home on 16 December advised that where a counterallegation is made, the police normally take the first telephone call receivedabout the matter as being the true version of events. Clearly this is what PSIxxx and TDS xxxxx did on the basis that the (untrue) allegation was made aboutme at 11.48 on 11 February, followed by my mother's call at 11.52 on 11February. If PSI xxx had not been so careless, she would have found that mymother had phoned 101 at 11.38 and her phone call lasted until a few secondsafter 11.48. It is grossely unfair that I have been made the scapegoat forerrors made by PSI xxx and TDS xxxxx.

I have been punished a number of times for the same "offence", whichin any case I completely deny. The assailant in the 11 February incident - whoPSI xxx was supposed to be investigating - went on to commit a further offenceagainst me; Inspector xxxxxx make it impossible for me to come to work byensuring that I was not transferred temporarily out of FEC; I lost my healthbecause of the combination of what PSI xxx wrote about me and becoming too illto continue to work in FEC when I was alleged to be unfit to be employed todeal with the public; I lost out financially because of being reduced to halfpay because I became too ill to come to work in FEC; I was put in a positionwhere my position was untenable and I had no choice other than to resign eventhough I have no job to go to and no prospects for the future; and now thepunishment imposed by the 4 December Misconduct panel. It is grossly unfairthat I alone have been singled out and pursued on (in my opinion"trumped-up") Misconduct proceedings whereas PSI xxx and TDS xxxxxwho made errors that allowed a criminal to continue unimpeded without beingcharged for several months to pursue a hate/harassment campaign against me andeven though he is to face trial for another incident against me, to escapealtogether any kind of punishment for his initial offences against both me andmy disabled mother.

These points do not have any bearing of the outcome of the misconductmeeting and are being investigated as part of your grievance.

Appeal point 20: (submitted on the 24th January 2016)

Further to the decision made re Allegation one that "on 23 February 2015 Ibehaved inappropriately towards police staff investigators xxx and xxxxx, beingrude and aggressive in my manner", I submit the following point of appeal:
The subjective opinion of PSI's xxx and xxxxx is not backed by any evidencethat goes far enough to prove that it is more likely than not that my behaviourfell below the standard that was expected from me. There is a clear conflict ofevidence between the opinions of PSI's xxx and xxxxx versus the opinions of meand my mother and I request that the allegation is dismissed under a point oflaw as per Salford Royal NHS Foundation Trust v Roldan. 2010. EWCA Civ 522)

The decision on a misconduct meeting is based on the balance ofprobabilities and does not have to be proven.

Having considered all the relevant points of your appeal I conclude thefollowing:

The findings and misconduct outcome were reasonable.
No evidence has been provided that could have materially impacted on findingsor outcome.
There is no evidence of any serious breaches of procedures or other unfairnesswhich could have materially impacted the findings or outcome.
Therefore your appeal is not upheld and the original sanction stands. Theoutcome of an appeal is final; you have no further right of appeal.

Yours sincerely,

xxxxx xxxxxxxxx – Chair of Panel
Deputy Head of Contact Management for Hampshire Constabulary and Thames ValleyPolice

cc- Unison Mailbox
Please note:- Comments in red at 4 and 10 are addedby me, Justace. "

Misconduct Appeal and viability of Employment Tribunal - advice please?

Misconduct Appeal and viability of Employment Tribunal - advice please?

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