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The nasty taste left after unfair disciplinary proceedings

Published 11 August 2021

When Jason took a packet of crisps from a bin to avoid food waste he thought it was a good thing – but his employer certainly did not think so.

Jason was accused of theft and cruelty towards a vulnerable resident at the home where he worked caring for young people with learning disabilities.

A service user threw a packet of crisp in a waste paper bin after opening them, tasting some and spitting them out. The teenager thought the packet was out of date.

Support worker Jason retrieved the packet and checked the date. There was a month left before the expiry of the best before date.

Jason tasted a crisp and offered one to a female colleague who was also present.

Both Jason and his workmate thought the crisps were fine. He offered them back to the resident, but he refused them.

But rather than throw the crisps away, Jason asked the resident if he could have them, was told he could and he finished the packet.

He faced allegations of theft from a resident and cruelty when he attended a disciplinary hearing accompanied by one of our representatives.

Our representative successfully argued Jason’s actions could not reasonably be considered to amount to gross misconduct as alleged.

The service user was not interviewed as part of the disciplinary investigation. A complaint was made by his father.

He had visited later the same day and said his son was upset and told him a member of staff had taken and eaten his last packet of crisps in front of him.

After the home received the complaint Jason was called into the manager’s office and suspended from work.

He was devastated, as he had worked at the home for over 10 years, loved his job and had never been in trouble before.

Given the seriousness of the allegations Jason was understandably concerned.

He contacted the Castle Associates Employee Support Centre after being told to do so by a relative

Prior to the disciplinary hearing our representative requested Jason’s colleague, who was present at the time, attend the hearing as a witness.

An employee can ask for witnesses to attend a disciplinary hearing in accordance with section 12 of the ACAS Code of Practice.

There is no statutory entitlement for an employee to call witnesses at a disciplinary hearing. However, the Code provides that employees should be given a reasonable opportunity to call relevant witnesses.

Jason’s workmate attended the hearing as a witness. She provided evidence that the service user clearly said he did not want the crisps, Jason tried to assure him the crisps were fine, checked more than once if he was sure he did not want them and asked numerous times if he could have them.

She also confirmed there were no obvious or visible signs of upset or distress from the service user afterwards, or during the rest of the shift.

Our representative told the hearing Jason’s actions cannot reasonably be considered to amount to gross misconduct.

The hearing was told that Jason was deeply sorry for any upset caused by his actions, which were not deliberate or intentionally cruel.

Our representative said Jason was a dedicated, caring and trusted member of staff who had taken appropriate learning from the incident. This was explained and cited as evidence that should assure the employer Jason would not be involved in a similar incident in future.

His exemplary disciplinary record was highlighted along with compliments he had received from families in emails and cards.

Our representative asserted that based on the evidence Jason should be cleared of any deliberate wrongdoing.

The disciplinary hearing chair asked a number of questions about the incident before adjourning the hearing to consider an outcome.

After a short break Jason was cleared of the allegations and given informal words of advice about his future conduct.

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