The injustice of being considered guilty of a disciplinary offence before being cleared
Published 30 September 2020
Guilt by association can sometimes be grossly unfair and in Kim’s case it led to her facing the threat of dismissal from her job.
The delivery driver/warehouse operative was suspended from work following a police raid on her home.
Her partner was later jailed, but Kim was cleared of any criminal wrongdoing.
Local TV footage and newspaper photographs clearly captured Kim’s van, emblazoned with company name and logo, on her driveway during the police raid.
Kim was initially arrested and later released on bail, which gave officers more time to investigate.
Before police eventually cleared Kim of any involvement in criminal activity, she faced a disciplinary hearing for bringing her employer into disrepute.
At the time of her suspension, Kim who had worked for her employer for over 10 years, was informed that a client had threatened to withdraw its business because of her involvement in serious crime.
She was also told that a ‘couple’ of colleagues had threatened to resign is she was not dismissed.
Distraught Kim protested her innocence. Her manager reassured her that no decisions had been made.
About three weeks after her suspension, Kim was invited into work to have a ‘chat about the situation’ with her manager and the business owner.
At the start of the meeting Kim was told it was an ‘off the record meeting’ under section 111A of the Employment Rights Act 1996.
She was advised to resign or be sacked as the fallout from her arrest could have serious and damaging repercussions for the business.
Kim was told that if she resigned with immediate effect she will be paid her notice period and guaranteed a standard reference. Kim rejected the offer.
A little over two months later Kim was invited to attend a disciplinary hearing to face an allegation of bringing the company into disrepute. She was warned dismissal was a potential outcome.
Although the ACAS Code of Practice is clear in that an employee should be provided with evidence when notified to attend a disciplinary hearing, Kim was not provided with any evidence to support the allegation.
At the time of the proposed disciplinary hearing Kim was still on police bail. She had not been charged with a crime.
Kim contacted the Castle Associates Employee Support Centre for help.
Prior to the disciplinary hearing our representative contacted the employer and requested a copy of the complaints and evidence from the client and ‘employees’.
The company refused to provide the information, redacted or otherwise, claiming it was private and confidential.
This led to a formal grievance, which included grounds of unfair treatment and breach of the ACAS Code, being submitted on Kim’s behalf.
The grievance letter requested that the disciplinary process be suspended in accordance with section 46 of the ACAS Code, as the grievance if upheld could have serious implications for the disciplinary process.
The employer agreed to hear and deal with the grievance first.
At the grievance hearing our representative argued that Kim’s treatment was grossly unfair.
He said if there was evidence to support the allegations, she was being denied an opportunity to respond it which is the cornerstone of any fair disciplinary process.
He also maintained that at that stage, she was still innocent and had not been charged with or proven guilty of any offence.
In terms of the apparent threats from a client to withdraw its business and employees to resign, he pointed out that the company had a duty to protect Kim in the face of such threats being made, especially when there was no evidence to suggest she had done anything wrong.
The grievance hearing was told that Kim maintained her innocence and was confident that she would be cleared.
Kim was due to answer her bail two weeks after the grievance hearing, and our representative encouraged the employer to await the outcome before deciding how to proceed.
The employer did not commit to doing so. The grievance hearing was adjourned.
A fortnight later Kim was told by police that she would not face any charges.
The disciplinary case against her was subsequently dropped and she returned to work.
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