A plea for help that created more trouble in a disciplinary case

Any joy James felt when he was cleared of the serious disciplinary allegations he was facing was short-lived - because his problem did not end there.

The retail assistant was suspended from work for collusion with colleagues to undermine the temporary manager and unfair treatment of some customers based on their appearance. The terms of suspension meant he was instructed not to contact colleagues.

James denied the allegations. But he was understandably fearful because it was not the first time he had faced serious allegations during his seven years with the retail outlet.

A few years ago James was dismissed and later reinstated after it was alleged he breached the rules of the coronavirus job retention scheme put in place during the pandemic.

With the support of our representative he successfully appealed that decision on the grounds that it amounted to an unfair dismissal.

So as soon as James was made aware of the new allegations, he knew exactly where to turn for help. He contacted our Employee Support Centre on the day he was suspended.

Our representative spoke to James, but could not provide much assistance at the time because the case had not yet been investigated.

The following week James was invited to attend a fact-finding meeting, also known as an investigation meeting.

It was arranged as part of the disciplinary investigation process aiming to establish the facts of the case.

The employer’s disciplinary policy, similar to many other disciplinary procedures, did not provide employees with the right to be accompanied at a fact-finding meeting.

James was only given the allegations ahead of the meeting. No other information or details were provided.

Although our representative could not attend the meeting with James, he was able to help him to fully prepare for it.

With support from our representative and ahead of the meeting, James requested more details about the allegations.

Additional information was eventually provided after an exchange of email correspondence between the employer and our representative.

It allowed James to discuss the case with our representative, and for him to advise and help James on how to respond to the allegations.

James attended the meeting and following it was told he would be informed as soon as possible about the next step.

He told our representative he was convinced it would proceed to a formal disciplinary hearing.

It was what James did next that created a new problem for him.

James, certain the matter would go to a disciplinary hearing, and unbeknown to our representative, contacted a colleague to ask her to be a witness for him at the hearing.

Two weeks later James was informed the allegations against him had been dropped, but he would still face a disciplinary hearing for breaching the terms of his suspension by contacting a colleague and trying to influence a witness.

The allegation centred on a text James sent which said: Gotta issue at work, you probably know what it is, you know what happened, might need you as a witness if poss?

James had a statutory right to be accompanied at the disciplinary hearing. Our representative acted as his companion and argued on his behalf that his actions did not amount to any type of misconduct. He also raised a concern about the process and failure to attempt to establish the facts in line with company policy before initiating formal disciplinary action for a new allegation.

Our representative argued James cannot reasonably be considered to have attempted to influence the witness based on the text, which only sought clarification if she could possibly be a witness.

He added the contact was a genuine mistake at a time of great stress and vulnerability given James had been unfairly dismissed previously, and it was not a flagrant breach of the terms of suspension.

The context in which the contact was made was explained, the hearing was told James was remorseful and apologetic, respected the investigation process and had demonstrated his commitment to cooperate and had taken appropriate learning from what he did.

James was later cleared of the allegation.