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Sending the wrong message with an unfair disciplinary process

Published 14 December 2021

Sometimes when an employee is facing disciplinary action they simply want to make the best of a bad situation.

Nobody wants to be dismissed from their job, even when it appears at first that it is inevitable.

Hospitality worker James admitted the allegation of sending explicit messages to a female colleague - but the case was not what it seemed on the face of it.

The workmate who received the messages did not complain. However, the employer considered it inappropriate behaviour by James.

James contacted the Castle Associates Employee Support Centre for help.

He explained he was willing to leave the job and desperate not to be dismissed.

James said he sent the messages during a brief relationship with his colleague, and that they exchanged similar messages.

Despondent James  had attempted to resign prior to contacting us, but his employer refused to accept his resignation.

James’s problem started when the female member of staff accused another male employee of sexual harassment.

She provided messages from her phone and social media accounts as evidence to support her allegation against him. It inadvertently also revealed a message she had been sent by James.

It led to the investigating manager quizzing her about James and uncovering the messages he had sent. She explained it was while the two had, had a relationship.

However, the investigator believed the messages were inappropriate. James was suspended from work. He was understandably concerned and he feared the worst.

James was devastated by how he was being viewed and treated. It resulted in him feeling he no longer wanted to work for the company after four years’ service.

Prior to the disciplinary hearing the company provided James with the evidence to support the allegation of him sending inappropriate messages to a colleague. It consisted of screenshots of messages he had sent.

James provided the full message thread to our representative, which showed his female colleague had sent him similar messages. The investigating manager had not included those messages.

Our representative felt this was unfair and the evidence selective, as the woman in question had acted in the same way as James.

A grievance was submitted on behalf of James. It alleged unfair treatment and sex discrimination, which occurs when you are treated differently because of your sex.

In the grievance submission a request was made to suspend the disciplinary hearing in accordance with section 46 of the ACAS Code of Practice.

The employer insisted it would hear the cases concurrently and on the same day, and deal with the grievance first.

At the grievance hearing our representative presented the full thread of messages exchanged between James and his colleague.

He made the point the relationship was consensual and in that context the messages reciprocal, and that the woman in question had not complained about James.

Our representative argued that to sanction James or dismiss him could be considered to amount to sex discrimination, as he was clearly being treated differently to a female colleague who had done exactly the same.

An employee’s desired grievance outcome is always important in any grievance process. The grievance hearing was told that James wanted the disciplinary process to stop and to be allowed to leave.

Our representative said in return he would agree not to pursue a claim for sex discrimination, which he would be entitled to do in the circumstances.

The hearing was adjourned and it was agreed that the disciplinary hearing would not go ahead as planned. This was to allow the employer to seek further advice on the matter.

It led to a discussion about a settlement agreement, which was later negotiated and agreed.

James received money he was owed in addition to a tax-free payment, and he was allowed to leave. In return he agreed not to pursue any claims arising from his employment.

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