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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was made aware of theft from the workplace and issued

Customer Question

I was made aware of theft from the workplace and issued three separate warnings to all staff with a fourth warning issued by a trade union representative. When the instructions/ warnings were ignored. I eventually saw suspicious behaviour via cctv and went to investigate. I found many items of waste materials removed from a sorting line placed at different points and then opened a number of lockers and they contained items that should not have been in lockers, without first purchasing them from our on site reuse shop.
In accordance with 9.1 of the contract of services for the agency staff concerned I asked that thier assignment with us be ended.
Two of the directly employed staff were interviewed in accordance with our disciplinary procedures and I simply issued them with a misdemeanour letter, again in accordance with our disciplinary policy. Therefore no formal disciplinary sanction was issued.
I reisnsated two of the agency staff at the request of the trades union, because they had nothing in their lockers, but not the others as they did have items in thier lockers and one was a relief charge-hand who was known for removing precious metals eg jewellery from black bagged waste and I felt that I could no longer trust him as there was a breakdown in trust and confidence. At the time this was verbally supported by my head of service.
As part of a disciplinary investigation against me I am accused of being a bully which includes the examples given above.
In regards ***** ***** agency staff I believe I acted fairly as they had received four warnings to comply with with an instruction to send all items recovered to the reuse shop where they had the option to buy cheaply. The agency management team support this decision. Yet the two people who I reinstated now claim that I unfairly treated them, even though I reisnsated their assignments.
The two directly employed staff have no formal disciplinary sanction against them yet they say I am a bully because of the way in which I allegedly dealt with them and claim that I subjected them to formal disciplinary processes even though they had no items in their lockers. I did say that they were knowingly allowing the practice to routinely occur and did not report it. Thereby making them guilty by association, a term that is now being used against me by all parties.
It's important to note that the directly employed staff and their union representative actually thanked me at the end of the meeting, as is shown in the meeting notes for the way in which I dealt with the matter. The same union official is also supporting me in the case against me which has been brought forward as part of a much larger case following a staff survey of which there were circa 115 allegations of all sorts of wrongdoings dating back ten years in some cases. But nothing ever reported before the staff survey at the end of 2014.
I am also accused of bullying another member of staff by allegedly shouting at her for 2 1/2 hours which was allegedly heard by five other employees, all of whom have made allegations against me, some of which have been dropped because of my evidence proving otherwise. I did not shout at her and have never shouted at anyone in the workplace. She is aggrieved that I was brought in to manage her and the rest of the team as the Authority was running an arms length company known as a ***** *** ****** ****** company which was in great difficulty with the threat of prosecution. I successfully, with help from a great team turned the situation around and won a national award for our achievements. It cost time and money to this which is also now being used against me.
The case has gone on for the past thirteen months with circa 82 of 115 allegations being dropped because of the hard evidence that I was able to provide and because there was no evidence to support the rest of the allegations. It is commonly known in the workplace that it is a witchunt against me as I have a clean 24 year working record. I and the union representative believe that I am being unfairly treated and used as a scapegoat.
***** ************ **********************************************************************
Could you please tell me if I am wrong to say to people that you are just as guilty (guilty by association) as those who took items from the waste sorting lines because you choose to ignore and effectively condoned the practice by ignoring four separate warnings/instructions?
Any help and advice would be greatly appreciated as I am innocent of the the charges against me and the matter has now been referred to a disciplinary hearing with a date to be set in approximately four weeks time. There is a lot more background to this case which I feel explains why I am now enduring a living nightmare.
I hope you don't mind me asking the questions and am grateful for any advice and clarification on the points raised above.
Yours sincerely
*****
Submitted: 9 months ago.
Category: Law
Expert:  Ben Jones replied 9 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Customer: replied 9 months ago.
Thank you, ***** ***** your reply.
Expert:  Ben Jones replied 9 months ago.

Based on what you have described, please can you tell me what the ideal outcome would be for you given the circumstances, so that I can advise you of your options? Thank you.

Expert:  Ben Jones replied 9 months ago.

Please can you also tell me how long you have worked there for?

Customer: replied 9 months ago.
I seem to have no choice other than to go to go a disciplinary hearing and fight my case as the ****** has at this stage rejected my request ***********
As a result of that request being turned down "at this stage" I feel that I have no alternative other than to be able to robustly defend my position with a view to going to a tribunal, if indeed that would be an option? I have a number of witnesses who are prepared to attend the hearing and a tribunal if required. Therefore I need to have clarification on my questions so that I may use the information that you provide as part of my defence at the hearing and possibly a tribunal hearing.
Expert:  Ben Jones replied 9 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 9 months ago.

Many thanks for your patience. to be honest the terms you have used, such as being ‘guilty by association’ is not really something that is legally defined so you will not find anything specific which says you can or cannot use it in such circumstances. It is your opinion that there is some guilty and in all fairness there probably, although it would not be the same level of guilt as someone who had deliberately done the prohibited act. Allowing a practice to happen does not mean the person doing so would be guilty of the same offence as the person who committed the wrongful act so in some respects this is more something of a moral guilt rather than a legal one.

In any event, in relation to bullying, The Advisory, Conciliation and Arbitration Service (ACAS) defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” Whatever form it takes, it is unwarranted and unwelcome to the individual subjected to it.

If you are now facing a disciplinary then you may have to go ahead and defend that to the best of your abilities. Considering your length of service and record, I would say that a dismissal is unlikely to be the outcome of this. Of course nothing prevents the employer from going down that route but at the same time it can be challenged if necessary.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have following the disciplinary outcome, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 9 months ago.
Thank you for your reply.Could you answer the question in regards ***** ***** directly employed staff who only had a misdemeanour letter please? They now claim that I bullied them by subjecting them to a formal disciplinary process through guilt by association. Have I actually done anything wrong in this regard as no formal disciplinary sanction was issued. The matter was not taken any further and the case was closed as far as I and the union was concerned.Also there is the issue of the agency staff member who had his assignment ended through a breakdown in trust and confidence because of the position he held in a relief capacity and he was known to be taking items of precious metals. His contract says that his assignment can be ended without notice and without reason by either party. Have I therefore done anything wrong by ending his assignment.?
Expert:  Ben Jones replied 9 months ago.

Hi there, whether this was formal disciplinary action will depend on how you used this process and if it was something which remained on their personnel record. For example, a verbal warning is not formal disciplinary action but if the record of this was kept in the employee’s personnel file and could potentially be used against the m in the future, then it is akin to formal disciplinary action and they should have been taken through a formal disciplinary process. In your case, if you had simply issued a letter warning them that they should not repeat their actions as it could result in them being in trouble in the future and you took this no further and did not keep it as part of their disciplinary record, then it is not really formal disciplinary action. Saying that, for bullying to occur it is not necessary to formally discipline someone, bullying can happen in all circumstances, formal or not.

As to the agency worker, he would not be protected against unfair dismissal anyway and as you can terminate his contract at any time under the terms he was employed by you, assuming there was no discrimination behind your decision (e,g, based on race, gender, religion, age, etc) you would not have done anything unlawful .

Customer: replied 9 months ago.
I kept Diary entries of events that occurred as I was always taught/ told that they would form part of any evidence in the future, including a tribunal if necessary. However it appears that the notes in my diary are being ignored as it has been said that it is my word against his. Am I correct in saying that my diary entries are evidence of what occurred and what was said at the time, or can the employer simply choose to ignore that part of my evidence?The letter I issued was simply a warning/ admonishment informing them what I believed was wrong and what the consequences could be if they were involved in similar activities in the future. I have proper notes from the meetings and confirmed to them that no formal disciplinary action was being taken and therefore did not take the matter any further. I considered the matter closed. The letter and notes from the meetings are however held on their file. This forms part of the company's misdemeanour procedure which is to be looked at/ considered prior to formal disciplinary action/ investigations commencing in order to give people to a chance to realise what they are doing wrong, and what needs to be done going forward. Yet I am accused of subjecting them unfairly to a formal disciplinary process when it was simply a short meeting with the misdemeanour letter following it up. Are they, the employees and the employer, legally correct in saying that I unfairly subjected them to a formal disciplinary procedure when I confirmed to them in writing that no formal disciplinary action was to be taken?
Expert:  Ben Jones replied 9 months ago.

Hi there, diary entries are evidence but they are not direct evidence as such they are your own evidence and your personal opinion. So the employer can choose to ignore certain evidence if they do not think it is relevant or question its credibility.

The argument here is on a technicality or to be more precise on interpretation of what amounts to disciplinary action. What you did may jot be ‘formal’ disciplinary action but it can be part of the overall disciplinary process. Just as a verbal warning is mot formal disciplinary action, it is still part pf the disciplinary process, like an informal initial step. The same would be here, it may not be formal disciplinary action like being properly taken under a disciplinary procedure but it is something which can form part of their record and be considered in future disciplinary proceedings.

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