Unpicking the detail of the evidence to get a just disciplinary outcome
Published 29 January 2020
An employee can be forgiven for thinking everything is against them when facing disciplinary action and witness statements appear to go against them,
GP receptionist Molly faced the threat of dismissal when she was alleged to have been abusive and insulting to a pharmacy worker during a telephone call about a prescription.
When Molly was invited to a disciplinary hearing she was provided with the evidence against her. It consisted of a written complaint from the pharmacy worker and two email statements from a pair of her colleagues.
Employees in Molly’s position will often turn to their own workmates for back-up. She remembered mentioning the conversation to a female colleague at the time and telling her it was the caller who was abusive.
So, when Molly attended a fact-finding meeting as part of the disciplinary investigation process she named her colleague as a witness in support of her case.
The colleague was eventually asked about the incident six weeks after it occurred. She told the investigating manager she could not honestly remember exactly what had been said.
Molly having worked for her employer for nearly six years seriously thought about resigning and pursuing a case for constructive dismissal as she felt as if she was being unfairly forced out.
Molly had never been involved in any type of disciplinary process with her current or any previous employer during her long working career.
She was unsure what to expect, spoke to a friend and was given the details that led to her contacting the Castle Associates Employee Support Centre for help.
Our representatives are experts in studying the evidence being used against an employee in a disciplinary case and assessing the strengths and weaknesses of it.
It was felt that the case was effectively the word of Molly against that of the pharmacy worker. It was clear the evidence of the caller’s colleagues was based on hearsay and they had simply repeated what they had been told.
The fact Molly’s colleague could not remember what was said was not considered to be a problem.
Our representative discussed the outcome Molly wanted. She explained she had thought about resigning, considered a settlement agreement but because she loved her job she wanted to clear her name and carry on working.
At the disciplinary hearing our representative presented Molly’s case, which included reference to the two witness statements said to support the allegation. He highlighted to the chair of the hearing the sections that confirmed the statements were based purely on what the complainant had said to the witnesses.
He told the hearing that as those witnesses, by their own accounts, clearly did not hear what was said during the call their accounts cannot be considered an independent and impartial account of the event.
It was also pointed out that the witness statements, which were emails sent to the woman making the complaint, had not been gathered by the investigating manager. He simply accepted them as fact and did not question them as can reasonably be expected as part of a thorough and fair investigation that may lead to dismissal.
The witness statement from Molly’s colleague was referred to and it was maintained that given the considerable delay in her being asked about the incident it was plausible she could not recall exactly what was said.
The unexplained and unreasonable delay in conducting the investigation was raised as a concern, as was the fact it was harmful to Molly’s case and put her at a disadvantage.
Our representative told the hearing that the case was effectively the word of Molly against that of the pharmacy worker. He cited employment case law to say that in such circumstances, without corroboration one way or the other, the alleged wrongdoer should be given the benefit of the doubt.
Molly was given the benefit of the doubt, and she was relieved to be cleared of the allegation.
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