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Case Studies

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When the odds really are stacked against you during the disciplinary process

Published 21 March 2018

For those who like a gamble betting on the outcome when an employee with a final warning is facing fresh disciplinary action may seem like a sure bet.

When Anita was notified to attend a disciplinary hearing for abandoning her post at the south west-based nursing home where she worked, she was right to fear the worse.

Just six months earlier Anita was lucky to keep her job after admitting telling her manager to go away and leave her alone in a very crude and highly offensive manner.

Following this incident Anita was given a final written warning that would stay on her record for 12 months.  She was warned a further act of misconduct may result in dismissal.

Anita believed her fate was sealed when she was called into the manager’s office, with a member of the HR team present, and informed that she was suspended from work.

It was her first day back at work after being off for four weeks after being diagnosed with shingles, and she was understandably distraught.

Although the odds are stacked against an employee on a final warning and facing further disciplinary action, the outcome is not always inevitable.

Now our representatives at Castle Associates are never afraid to take on a challenging case, so Anita was in good hands after she contacted the employee support centre for help.

Anita was alleged to have abandoned her post without informing the manager. The company considered this in itself to be an act of gross misconduct if proven.

Anita admitted leaving work, but insisted she spoke to her manager before doing so.

Our representatives are always keen to see the evidence that the employer is relying upon to support the allegation. The ACAS Code of Practice, which all employers are encouraged to follow, does state that any evidence should be provided to the employee in advance of a disciplinary hearing.

The evidence provided by the employer in this case was a transcript of an investigation meeting which took place with Anita during the disciplinary investigation stage of the process, and statements from two colleagues who said Anita complained of feeling unwell and had been looking for the manager before leaving. The following day Anita was diagnosed with shingles.

The investigation meeting notes proved significant in this case. At the disciplinary hearing our representative used the notes to highlight Anita did inform the company that she had spoken to her manager on the phone while sat in her car in the car park.

The notes also included Anita’s assertion that during the call she was told by the manager that if she was going to ‘cry off again’ she should just go home and maybe ‘not bother coming back.’

The call log on Anita’s phone confirmed she did make a phone call to the manager six minutes after leaving the building. Anita also said that during the call she offered to return to work, but was told there was no reason to.

Our representative pointed out that no attempt was ever made to check this with the manager as a statement from her had not been provided and this was significant failing in the investigation. He also argued that as this conversation did take place, then it was clear that Anita did not abandon her post as alleged.

It was also highlighted by our representative that the two witness statements both confirmed Anita had complained of feeling unwell, was looking for the manager to inform her, and that before leaving asked one of the witnesses to tell the manager she had to go.

Our representative maintained there was good evidence to demonstrate that Anita was genuinely ill, did not recklessly abandon her post and did in fact make the manager and staff aware she was unwell and had to leave. The hearing was adjourned in order for the company to carry out further investigations.

Three days later Anita was cleared of any wrongdoing. She continued to work without further incident until her previous warning had expired.

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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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