Case Studies

Case Studies

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When it’s right not to accept a warning

Published 18 April 2018

There are occasions when an employee is disciplined and not dismissed but left with a strong feeling of injustice.

All workers have the right to appeal against any disciplinary action their employer takes against them following a disciplinary meeting.

Aisha had worked in the same sales department for 13 years before she was given a final written warning for harassment. She had a history with her accuser, which will be covered later.

Initially Aisha did not think it worthwhile challenging the outcome. She had no idea what to expect from the disciplinary appeals process.

Aisha was simply relieved to keep her job, but greatly concerned that the warning would remain on her record for 12 months. 

Worried Aisha contacted the Castle Associates employee support centre for help and advice.

The incident that led to the allegations being made against Aisha took place in a team meeting. Aisha interrupted a colleague when he was speaking in order to correct him, he made a sarcastic remark and she responded before he walked out.

The male colleague later submitted a formal grievance in which he cited the incident and accused Aisha of harassment.

Aisha had previously been a witness in a disciplinary case against the same male colleague, which resulted in him being dismissed. He was later reinstated.

She had since had cause to report his conduct to management on two separate occasions. Once was for making an offensive comment to her and another time for failing to accompany her at a presentation, both allegations were dismissed.

The pair later attended mediation, but Aisha felt the working relationship remained strained.

Aisha was invited to attend a disciplinary hearing to face an allegation of harassment following the incident at the team meeting.

She denied the allegation and asserted that she had been justified in correcting her colleague, as the information he was providing was proven to be incorrect. Aisha also claimed there was nothing untoward in the manner in which she interjected or the subsequent verbal exchange

The allegation was considered proven and Aisha was issued with a final warning.

Prior to the appeal hearing our representative was provided with all of the evidence and relevant policies.

At the appeal hearing our representative argued that Aisha justifiably felt victimised as the company had failed to follow its own grievance policy.

The procedure set out that an initial informal attempt would be made to resolve the grievance. If that failed the person making the complaint would be invited to a grievance hearing to explain the grievance.  An investigation would then be conducted and the alleged wrongdoer interviewed, after which it will be decided if any further action is necessary.

Our representative highlighted that this process was not followed before a decision was taken to unfairly instigate disciplinary action against Aisha.

Focusing on the allegation of harassment, our representative also pointed out the definition of harassment as defined by the company’s own bullying and harassment policy and he asserted that there was no evidence of harassment. The policy said: Harassment targets individuals or groups based on a protected characteristic such as gender, race, or ethnicity.  

The witness statements were also used to support Aisha’s case. All confirmed that she did interrupt her colleague, but none of them described it or the following exchange as inappropriate.

Our representative argued the issuing of a final warning was unfair and unduly harsh as no reasonable employer would have issued a similar sanction based on the evidence. He added that Aisha was also willing to take part in further mediation with her colleague, as she had done previously.

The appeal was successful and the warning was removed from Aisha’s record. So far the mediation appears to have worked - this time.

 

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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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