Disciplinary letter advice
Discussion
Hopefully just a quick one.
A friend has received a disciplinary letter, it does not detail that the accusation is gross misconduct nor does it say that a possible outcome may be their dismissal from the job.
It is my understanding that if an employer fails to detail the above then they can't dismiss you and can only give you verbal, written, final warning. any advice appreciated.
Many thanks
A friend has received a disciplinary letter, it does not detail that the accusation is gross misconduct nor does it say that a possible outcome may be their dismissal from the job.
It is my understanding that if an employer fails to detail the above then they can't dismiss you and can only give you verbal, written, final warning. any advice appreciated.
Many thanks
Jasandjules said:
What DOES the letter say? Is it an investigation meeting?
What is he being accused of? Is it on the list of things which may be considered Gross Misconduct according to their Grievance policy?
it is a disciplinary meeting, the investigation has been carried out. The letter does specifically say misconduct or gross misconduct but the allegation is basically discussing confidential information with a non-employee . The confiscation was centred around him being made redundant and asking the non-employee about potential jobs as their work place. This conversation made its way via Chinese whispers to other staff and people under their care who were not fully informed of the redundancy. (To be clear all those being potential made redundant had been informed and the employer is basically alleging that people under their supervision may be upset by the news) What is he being accused of? Is it on the list of things which may be considered Gross Misconduct according to their Grievance policy?
Company handbook which contains disciplinary procedures is over 80 pages long. He was encouraged to discus the redundancy with family if he required support. And was not specifically told in redundancy meeting that the information was strictly confidential although employee hand book/contract would indicate that it shouldn't be discussed. Can he be expected to know the whole handbook? and wouldn't you expect employer to stress confidentiality and refer to policy when breaking the redundancy news if so worried about it leaking out?
we expect that as employer has realised they havent paid holiday pay since he's been employed that they are trying to recoup money by sacking him before his redundancy (in 6 weeks) He doesn't actually work those 6 weeks but gets paid anyway as per contract as it is a school term time role.
GT03ROB said:
I would really struggle with how an employee being made redundant who asks elsewhere for a job, which makes it's way back to his company, can be construed as in a disciplinary situation. Bonkers.
My thinking too, in the event it was taken to employment tribunal id have thought the judge would see it as a waste of his time. You can't seek alternate employment without stating why youre leaving your current job usually.and the allegation is basically that someone that works at his current company said that 'Dave' told them that 'sandra told him that my friend said he was being made redundant and was looking for other potential jobs.
Thesprucegoose said:
Half the story.
We’re not talking about a business where what was divulged is the equivalent of the official secrets act. It’s basically a care home for adults with learning difficulties, and the employer is trying to make out that the loss of staff would upset them. The employer has a high turn over of staff so it can’t be of that great a concern to them. I would have thought if you think it’s that big a worry you would explain in the redundancy meeting that it is strictly confidential and divulging info could be subject to a disciplinary? 
IANAL.
Short answer is the company can do what they like. If they break the law/breach contract the employee can go to employment tribunal/civil court (and possibly settle beforehand).
The longer answer is that the exact circumstances will decide what is and isn't a reasonable response. Paraphrasing, the employer has to conduct a fair investigation, but it doesn't have to be exhaustive and look at every nook and cranny. Then have a rational belief of guilt (the standard of proof is not very high, certainly not 'beyond reasonable doubt', more like a soft version of 'balance of probabilities') and the resulting sanction must be within a reasonable range.
Short answer is the company can do what they like. If they break the law/breach contract the employee can go to employment tribunal/civil court (and possibly settle beforehand).
The longer answer is that the exact circumstances will decide what is and isn't a reasonable response. Paraphrasing, the employer has to conduct a fair investigation, but it doesn't have to be exhaustive and look at every nook and cranny. Then have a rational belief of guilt (the standard of proof is not very high, certainly not 'beyond reasonable doubt', more like a soft version of 'balance of probabilities') and the resulting sanction must be within a reasonable range.
Please edit this so it says what you actually mean or I may assume something incorrectly
OP said:
it is a disciplinary meeting, the investigation has been carried out. The letter does specifically say misconduct or gross misconduct but the allegation is basically discussing confidential information with a non-employee . The confiscation was centred around him being made redundant and asking the non-employee about potential jobs as their work place.
Pothole said:
Please edit this so it says what you actually mean or I may assume something incorrectly
The cost/risk of going to tribunal would likely be a lot higher than the money they would save by sacking my friend. Company have also breached their own contractual terms by not paying holiday pay so could be worth mentioning that? OP said:
it is a disciplinary meeting, the investigation has been carried out. The letter doesnt specifically say misconduct or gross misconduct but the allegation is basically discussing confidential information with a non-employee . The conversation was centred around him being made redundant and asking the non-employee about potential jobs as their work place.
NuckyThompson said:
The letter does specifically say misconduct or gross misconduct but the allegation is basically discussing confidential information with a non-employee . The confiscation was centred around him being made redundant and asking the non-employee about potential jobs as their work place.
We expect that as employer has realised they havent paid holiday pay since he's been employed that they are trying to recoup money by sacking him before his redundancy (in 6 weeks) He doesn't actually work those 6 weeks but gets paid anyway as per contract as it is a school term time role.
Here you say it DOES say GM but in the OP you said it did not? Which is it? We expect that as employer has realised they havent paid holiday pay since he's been employed that they are trying to recoup money by sacking him before his redundancy (in 6 weeks) He doesn't actually work those 6 weeks but gets paid anyway as per contract as it is a school term time role.
A firm is claiming it is GM to seek alternative employment when they are being made redundant? There is either a lot more to this or they are beyond inept.
Further, the non payment of holiday pay can be a Constructive Dismissal.
It sounds like the Employer is attempting to avoid paying out the redundancy pay by fabricating excuses for termination. Does your friend have house insurance (which has a Legal Expenses Policy)
I'm struggling to get my head around this one.
From what I can deduce, your friend has been given notice of redundancy and is scouting around to see what jobs are available - which is perfectly acceptable. In doing so, he has given the reason for his interest as redundancy - again, perfectly acceptable.
This information has gotten back to existing employees who have not been made redundant but may be. That's unfortunate but it happens.
Unless there is clear mention in the company handbook that revelation of redundancy is not to be given (highly unlikely) or implicit instruction given upon your friend being told, then there's really nothing that they've done wrong.
An official disciplinary letter must clear explain the issue that has caused the letter to be written and why it is a disciplinary matter.
Either there's more to this than you are being told or the company don't know their own and standard rules.
From what I can deduce, your friend has been given notice of redundancy and is scouting around to see what jobs are available - which is perfectly acceptable. In doing so, he has given the reason for his interest as redundancy - again, perfectly acceptable.
This information has gotten back to existing employees who have not been made redundant but may be. That's unfortunate but it happens.
Unless there is clear mention in the company handbook that revelation of redundancy is not to be given (highly unlikely) or implicit instruction given upon your friend being told, then there's really nothing that they've done wrong.
An official disciplinary letter must clear explain the issue that has caused the letter to be written and why it is a disciplinary matter.
Either there's more to this than you are being told or the company don't know their own and standard rules.
Clearly there's more to it, but it strikes me that if the employer is so concerned that changes of staff would upset the clients, why are they even making anyone redundant? The clients will surely find out the staff member is leaving, it's just a matter of timing. There's no financial loss to the employer, so how could this ever be GM? Very odd.
The employer isn’t really that concerned about how the loss of staff will affect the volunteers as there is a pretty high turn over of staff. My friend is probably the longest serving employee below the manager concerned at about 8 months work.
They get made redundant in a months time, there is no redundancy payment but my friend would still get paid from now until them despite not having to work (only works during term time and it is in their contract that they still get paid)
Employer seems to be trying to get out of paying this as they’ve discovered they owe over £1k in holiday pay.
Company didn’t explicitly say do not communicate this as a matter of confidentiality when giving notice of redundancy but are implying that their contract and employee handbook covers this divulgence of confidential info. This is a business of about 5 employees and the handbook is over 80 pages long. I work for a large multinational and mine isn’t anywhere near that long. The only instruction was discus with family but don’t tell the volunteers as the company are looking at suitable way to break the news.
Friend didn’t discus with the volunteers, discussed with a friend about getting another job who then talked to someone else about it who then spoke to a couple of the volunteers and from there mentions of redundancy’s came up. The volunteers mentioned this to bosses as apparently concerned and named two employees they thought would be made redundant (2 employees not actually getting made redundant which is the confusing part as even if my friend had inadvertently mentioned redundancy to someone outside the business they’d have known who was being made redundant (just themselves) so some Chinese whispers at best seem to be the only evidence they have to go on and they haven’t even spoke to the person my friend allegedly told as part of the investigation.
Hope all that makes sense. To be clear the disciplinary letter didn’t mention any possible outcome including gross misconduct and simply refers to company handbook on disciplinary procedure.
They get made redundant in a months time, there is no redundancy payment but my friend would still get paid from now until them despite not having to work (only works during term time and it is in their contract that they still get paid)
Employer seems to be trying to get out of paying this as they’ve discovered they owe over £1k in holiday pay.
Company didn’t explicitly say do not communicate this as a matter of confidentiality when giving notice of redundancy but are implying that their contract and employee handbook covers this divulgence of confidential info. This is a business of about 5 employees and the handbook is over 80 pages long. I work for a large multinational and mine isn’t anywhere near that long. The only instruction was discus with family but don’t tell the volunteers as the company are looking at suitable way to break the news.
Friend didn’t discus with the volunteers, discussed with a friend about getting another job who then talked to someone else about it who then spoke to a couple of the volunteers and from there mentions of redundancy’s came up. The volunteers mentioned this to bosses as apparently concerned and named two employees they thought would be made redundant (2 employees not actually getting made redundant which is the confusing part as even if my friend had inadvertently mentioned redundancy to someone outside the business they’d have known who was being made redundant (just themselves) so some Chinese whispers at best seem to be the only evidence they have to go on and they haven’t even spoke to the person my friend allegedly told as part of the investigation.
Hope all that makes sense. To be clear the disciplinary letter didn’t mention any possible outcome including gross misconduct and simply refers to company handbook on disciplinary procedure.
NuckyThompson said:
Employer seems to be trying to get out of paying this as they’ve discovered they owe over £1k in holiday pay.
Right, well, that's the nub then.The reason people are made redundant is either because the business has changed and their role is no longer needed or the business is in financial trouble and they can no longer be afforded. You do not need a calculator to establish that the latter most likely applies here.
Without seeing the letter, it appears from what you have described to be as much use as a chocolate fireguard.
If the company is claiming or inferring Gross Misconduct, they are duty-bound to explain why. If not, your friend is within his rights to ask and be told why. They do not need to read the Company Handbook but the relevant section must be quoted in any official process.
If the company is in trouble then they may not get what's owed anyway but this should not stop them challenging things. At the very least, it could prove an unfair blot on their credentials going forward.
Unless the company is absolutely tiny or utterly stupid, they are unlikely to risk a tribunal for a slam dunk unpaid holiday pay and additionally for unfair dismissal, trying to save £1k.
Whether or not the company follows ACAS is an issue for uplift in damages, should the case proceed to tribunal and claimant win. It doesn't really determine the issue of fairness in the dismissal or disciplinary.
Being pragmatic I'd just try and get another job ASAP. Otherwise, assuming the employee has two years or more service, I'd let the company go through the disciplinary process, engage with it properly and see where it takes you. If the outcome needs appealing, appeal it properly. If at the end of that process it's clear the employer doesn't want you there, or it ends on dismissal, then use the threat of tribunal to reach a settlement that works for both parties.
Bear in mind costs at tribunal are not automatically ordered against the losing parties and court cases are expensive for respondents, especially small companies, in terms of time, financial cost, distraction and staff moral. The company could win their case but still end up severely out of pocket.
I'm not advocating pursuing a hopeless case or vexatious litigation, far from it, however it's often best to give a little rope and use the leverage later. What seems clear from the thread is that the company wishes to part ways with the employee. The employee should aim to make this happen in the way that's most advantageous for them.
Whether or not the company follows ACAS is an issue for uplift in damages, should the case proceed to tribunal and claimant win. It doesn't really determine the issue of fairness in the dismissal or disciplinary.
Being pragmatic I'd just try and get another job ASAP. Otherwise, assuming the employee has two years or more service, I'd let the company go through the disciplinary process, engage with it properly and see where it takes you. If the outcome needs appealing, appeal it properly. If at the end of that process it's clear the employer doesn't want you there, or it ends on dismissal, then use the threat of tribunal to reach a settlement that works for both parties.
Bear in mind costs at tribunal are not automatically ordered against the losing parties and court cases are expensive for respondents, especially small companies, in terms of time, financial cost, distraction and staff moral. The company could win their case but still end up severely out of pocket.
I'm not advocating pursuing a hopeless case or vexatious litigation, far from it, however it's often best to give a little rope and use the leverage later. What seems clear from the thread is that the company wishes to part ways with the employee. The employee should aim to make this happen in the way that's most advantageous for them.
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