When no evidence really should mean no case to answer
Published 17 January 2018
For an innocent employee accused of wrongdoing the first thing they are eager to see is the evidence against them so that they can clear their name.
And when there is no evidence to justify the allegations the individual has every right to feel aggrieved and ask ‘why is this happening?’
The ACAS Code of Practice guidance makes it clear the employee should be provided with sufficient details and evidence of the allegations to enable them to prepare a response.
But when Bob was dismissed from the Kent-based production factory, where he had worked for 16 years, there was no evidence to support the serious allegation against him.
He was accused of breaching health and safety rules by incorrectly setting a machine and putting workers at serious risk of harm. Bob was dismissed after attending a disciplinary hearing.
Bob, in common with many employees facing disciplinary action for the first time in their career, believed if he just told the truth everything would be ok.
He was initially summoned to his manager’s office, briefly informed of the allegation and then suspended despite protesting his innocence.
Bob was later invited to attend an investigation meeting. He was quizzed about the safety breach and told it appeared he was responsible. He denied the allegation.
The manager who carried out the investigation told Bob not to worry as it would all be sorted out – but it was not.
Bob then received a letter to attend a disciplinary hearing. It included three statements from colleagues all describing what had happened, but none blamed Bob.
As the only apparent evidence against Bob was these statements he was confident he would finally be cleared. When Bob was notified to attend the disciplinary hearing he was not informed of his statutory right to be accompanied by a companion, who can be a colleague or trade union representative. He attended the hearing on his own.
Bob was told that the incident took place when he was on shift, but he was not told what date this was. He was devastated when he was informed after the disciplinary hearing that the decision was to dismiss him. Bob contacted the Castle Associates employee support centre for help with his appeal.
After reviewing the case and discussing it with Bob our representative wrote an appeal letter on his behalf.
In the three weeks between his dismissal and the disciplinary appeal hearing Bob had managed to secure alternative employment. Therefore, his desired outcome to his appeal was to reach a suitable settlement agreement with his former employer.
Prior to the hearing our representative requested a wide range of information from the company in order to help Bob prepare his appeal. Included in this was a request for any evidence to indicate Bob was responsible for the safety breach. No such evidence was ever provided.
At the appeal hearing our representative argued this was a clear case of an unfair dismissal and he highlighted the lack of evidence against Bob. He maintained that no reasonable employer would have reached a decision to dismiss based on the investigation conducted, evidence available and mitigation which included Bob’s long service and exemplary disciplinary record.
Our representative also highlighted that despite requesting details of when the safety breach occurred and the rota for who was on shift at the time, this information was never provided and it appears never established.
The appeal hearing chair asked Bob about his desired outcome to the appeal. It was explained that he had lost all trust and confidence in the company due to the way he had been treated, and did not wish to return to work for it. It was explained that in the circumstances Bob wished to enter into discussions about a settlement agreement.
Those discussions took place over a number of days and Bob eventually received a five-figure financial settlement payment, the dismissal was removed from his record and he was also given a guarantee of a reference should he need one.