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An unwelcome history that can cause new disciplinary problems

Published 18 July 2018

There is a well-known saying that there is no smoke without fire but it’s a dangerous approach to take in disciplinary matters.

Sandy had won a number of awards in recognition of her performance in the nine years that she had worked for a North East-based travel company.

She had also been the subject of a formal grievance from an ex-colleague, but was cleared of any wrongdoing after she was able to prove the complaint was malicious. This would prove to be significant in this case.

Another element of Sandy’s previous behaviour that would prove notable in this case, was the fact that five years earlier she was given a written warning following a disagreement with a customer.

She found herself in trouble again just two weeks after the company announced that it was restructuring the business and that it would need to start a redundancy consultation process.

Sandy had been dealing with a couple who wanted to book a Middle East cruise. The process took much longer than usual due to demands and complaints made by the couple, and it was just minutes before closing time when an admittedly exasperated Sandy was finally able to complete the booking.

When Sandy was summoned to her manager’ office two days later and asked about the booking she had no idea that anything was wrong. She described the booking, said it was difficult but that she eventually managed to get it sorted out to the satisfaction of the customers.

Sandy was horrified when she was informed that a complaint has been received that she had made a racial slur against the couple. She categorically denied the allegation but was suspended from work.

While Sandy was on suspension the redundancy consultation process was ongoing. It was announced that there would be a number of compulsory redundancies.

Sandy later received a letter with a date for a disciplinary hearing. The letter included the evidence to support the allegation of making a racist comment about customers.

Sandy feared the disciplinary process would be used to dismiss her meaning that one less person would need to be made redundant. She contacted the Castle Associates employee support centre for help.

Our representative was provided with all of the evidence to support the disciplinary allegation. It included an email from the ex-colleague, who had previously submitted a malicious grievance against Sandy when she was working for the company.

She was in the shop at the time waiting for another member of staff when she claimed she heard Sandy make the comment as the couple was walking out of the door after completing the booking.

This was the only evidence to directly support the allegation. Statements from colleagues said they had heard how difficult the customers had been, and one said it was obvious that Sandy was getting frustrated.

An investigation report written by the manager made reference to Sandy’s previous disciplinary warning and referred to this as being evidence to indicate this allegation was true.

Sandy informed our representative that CCTV footage should be available that may help her case. Our representative requested a copy of it and both he and Sandy were reviewed the footage prior to the start of the disciplinary hearing.

At the hearing our representative made it clear that Sandy denied the allegation. He also argued the complaint was clearly malicious and the evidence did not support the allegation as the CCTV showed other people much closer to Sandy at the time who never claimed to have heard what was said when the customers left.

He also argued that reference to Sandy’s previous disciplinary warning was unfair as it expired many years earlier and guidance in employment law means it should not be considered. Sandy was eventually cleared of the allegation.

After going through the redundancy consultation process Sandy kept her job before deciding to leave a few months later for a management position with a rival firm.

For free employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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