A second bite at the disciplinary cherry can leave a nasty taste
Published 10 June 2020
Being cleared of a disciplinary allegation is a huge relief…so facing the threat of dismissal many months later for exactly the same allegation can be an enormous shock.
It is fair to say that Emma, a receptionist, had a somewhat chequered history with the medical centre where she had worked for more than 10 years.
She had previously been dismissed, before successfully claiming unfair dismissal and being reinstated.
After getting her job back Emma later faced fresh disciplinary proceedings. It was an allegation of being confrontational and bullying a junior colleague.
The allegation was made after the colleague submitted a formal grievance. Emma, who admitted being rude to the colleague on one occasion, was quizzed along with a number of workmates in relation to the complaint.
The outcome was that it was dealt with informally. Emma and a number of colleagues were issued with informal advice and warned about their future conduct.
Over four months later Emma was alleged to have been rude to a patient. The complaint was looked into and eventually rejected.
So, when Emma was later called into her manager’s office the conversation that took place came as a huge shock.
Emma was told that although she had been cleared of any wrongdoing regarding the patient complaint, the nature of it was a concern as the allegation was consistent with the one previously made by her colleague and dealt with informally.
In addition to this Emma was informed that the same colleague had now raised fresh allegations against her. Emma denied any wrongdoing.
Emma was later invited to attend an investigation meeting, also known as a fact finding meeting, as part of a disciplinary investigation into the allegations.
The investigation was concluded and no formal disciplinary action was taken against Emma.
However, during the course of the investigation Emma’s colleague referred to her previous grievance.
She said Emma had admitted being rude which was bullying, it was brushed under the carpet, she was unhappy about it and Emma should have been punished.
Management reviewed the previous case. As a result of doing so it was decided that Emma’s previous admission, over four months earlier, of being rude to her colleague should have been dealt with formally and it was a mistake not to have done so.
Emma was subsequently invited to a disciplinary hearing to face an allegation of bullying.
She was distraught and angry and considered resigning with immediate effect because she felt she was being treated unfairly.
Emma spoke to a colleague who advised her to contact the Castle Associates Employee Support Centre for help.
At the disciplinary hearing it was acknowledged by our representative that employment law does allow an employer to take disciplinary action twice for the same offence, but only in very exceptional circumstances.
The disciplinary hearing was told that there were no exceptional circumstances that could reasonably justify the action being taken against Emma.
It was asserted that Emma was being singled out and victimised as other colleagues dealt with informally were not being treated the same.
The allegation came from an incident in which Emma admittedly snapped at her colleague during a discussion, apologised at the time and it was accepted.
Our representative said it was the same case, the same facts and the outcome of the first disciplinary process was proportionate given the nature of the alleged offence, mitigation and Trust policy that such matters where possible should be dealt with informally.
Emma’s past disciplinary issues with the medical centre were referred to by our representative. He told the hearing that she justifiably felt victimised and targeted.
Our representative argued in the strongest possible terms that the case against Emma should be dismissed.
Emma was eventually cleared of the allegation.
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