Bullied at work, accused of stealing, disciplined for petty non-issue.

[stunned_monkey]

I'm posting this on behalf of a friend who I've been helping deal with a pretty horrid situation where he works. I've been helping mainly in writing letters - he'd be the first to admit his written english isn't great!

 

Anyway, I'll try and keep this brief and explain things in a nutshell:

 

Firstly transferred to this branch after a trouble-free year elsewhere doing the same job for the same company. Been treated poorly by direct superior, been sworn at regularly, blamed for everything (even when blatantly not his fault, eg computer system crashing) , and always the first to be singled out. A very easy going chap, he's put up with this with a "water off a duck's back" attitude, but recently things took a more serious turn.

 

A few months ago, an item of stock went missing from a box that he opened in the course of his job as warehouse man. He was openly (but only verbally) blamed for the theft - he was NOT responsible.

 

After prompting them to prove it, he was disiplined for "not following warehouse procedures". Though me, he forced them to detail what the infractions were, and to postpone the hearing till he'd had time to prepare his defence. They then completely ignored what he said and upheld the complaint, and subsequently at appeal too. They've obstructed his ability to see the minutes of the first meeting (with his direct manager) and he then discovered specific points had been reversed in the notes.

 

It's all stupidly petty and the feeling is that his immediate superiors are trying to save face after wrongly accusing him of the original theft.

 

His manager is now being a total **** and appears to be enjoying a power trip. My friend has been demoted, earning less for longer hours simply to get way from this guy - this is partly his choice, but the alternative is to walk away from the job (which I talked him out of).

 

He's now looking at filing a formal grievance against his manager, however that's likely to go nowhere. So the alternative is a tribunal.

 

My question is really what to expect from the tribunal and what should his "claim" be? - ideally he'd like to be made a worthwhile offer to leave. He's taken time off for stress, spent hours dealing with the CAB and ACAS (and me!)..IMO the comapny did not stick to ACAS' code of practice (we called them over some of it and they did follow them after prompting).

 

The actual disciplinary is small - but we really feel it's setting things in motion to get rid of him for the next minor infraction - and we're talking "not taping up a box while in the warehouse" as being one of the original accusations, so you get the idea...

 

Any comments welcome.

[colin813]

firstly your mate should ask his manager to stop belittling him in front of other employees, he should do this infront of a witness. He should then inform the personnel manager of how he feels. This alone should put a stop to his treatment. If this doesnt stop his treatment he should raise a grievance.

 

secondly a manager will and can always justify a warning if a process is not followed. If his manager wanted grounds for dismissal he had his chance but gave the benefit of the doubt. Remember a manager only needs reasonable belief to pursue a disciplinary, on this occasion the manager didnt take escalate the mis-conduct to gross misconduct. This gives me the belief the manager is not out to get your friend.

 

However if your friend feels he is being bullied he should start keeping a diary of events, dates and times.

Edited September 19, 2010 by colin813

[postggj]

a grievence complaint needs to be made in writing

 

this has three stages to it before you can entertain an

 

employment tribunal

 

this grievence complaint needs to be done from a manager at a different office and yes, you are entitled to see the minutes from any meeting

[SarEl]

I regret to say that there is nothing at a tribunal for him. His "best case" scenario is constructive dismissal - and frankly, it simply isn't going to happen. Such cases are nigh on impossible to win, and the burden of proof is on the employee throughout. In all honesty, based on what you say, he hasn't got a case. The employer should stick to ACAS guidance - but there is no way to enforce this. Anything less than a dismissal and the tribunal has no jursidiction to intervene. Nor, from the sounds of it, was he accompanied at the hearing - so he has no way of evidencing what was saod or done. It is his word against theirs. And then there is the thorny issue of "reasonable belief" - the employer does not have to eveidence a disciplinary, they only have to evidence that they had reason to believe someone was guilty of the offence. This is a much lower "bar" than most types of law accept.

 

Constructive dismissal requires him to resign in response to (and it must be an immediate or relatively immediate resignation) an action on the employer part which is a breach of contract or of trust and confidence. But it really is a big thing, and being disciplined isn't going to cut it unless he can absolutely evidence that the disciplinary was entirely unjustified. If he in any way didn't follow procedures, even in a small way, it would fail as a claim.

 

It's cold comfort, but to stand much of a chance of making any case, he needs to be dismissed. In such cases the burden of proof is on the employer, and even if they are convinced they have a case they are more likely to settle (if they are minded to - there are never guarantees). His only other option is the obvious one - find another job.

 

Oh, and just to add, stress etc are not relevant to a tribunal except in cases of discrimination. They will not award anything for upset or time.

[papasmurf1cx]

Any future meetings should be taped using a digital recorder. Falsifying official notes is common and one needs to be able to prove that those version of events is wrong.

 

I want to ask about your friends nationality because you say that his written English is not great, why? Is it because he is from somewhere other than the UK? Or is it that his education is not great? What I am trying to get my head around is why after a year of great service elsewhere that this manage has started to bully him?

 

Is there any suspicion of discrimination eg Race or Disability Discrimination? If so it may aid you to read up on the legislation.

 

I suppose the demotion is actionable because he has effectively been sacked from his original job. He should look at his term and conditions in his contract to see what they were and take it from there. Has he any support from a union or legal expenses cover for employment disputes, these can be found in home contents insurance or the like?

[SarEl]

I understood that the friend chose to be demoted - that was what the OP seemed to have said. In which case it wouldn't be actionable.

[papasmurf1cx]

"My friend has been demoted, earning less for longer hours simply to get way from this guy - this is partly his choice," Partly? Please can you explain the circumstances around this?

 

SarEl.... would it make a difference?

[colin813]

question why was your friend demoted? was it his choice? or the sanction of a prior disciplinary?

[SarEl]

A massive difference. Demotion cannot be used as a disciplinary measure unless it is agreed by the employee or is a written contractual term (which may be in the disciplinary code, not the terms of employment). If neither apply it may (but not necessariy would) be a possible cause to consrtuctive dismissal - but that would still be my avenue of last resort because such cases are fraught with danger.

[colin813]

A Demotion may be deemed taking of other action against an employee in the case of a disciplinary

[stunned_monkey]

Firstly, and for everyone, thanks very much for the replies.

 

firstly your mate should ask his manager to stop belittling him in front of other employees, he should do this infront of a witness. He should then inform the personnel manager of how he feels. This alone should put a stop to his treatment. If this doesnt stop his treatment he should raise a grievance.

 

 

His Manager, and his manager's manager (both based at the same branch, and the limit of the hierachy there) are equally aware of his problem and no attempt has been made to address the situation - if anything (following the theft accusation), it has got worse. On previous meetings where he has asked to record the meeting, it has been denied. He was told he wasn't allowed a copy of the minutes to both an "investigation", and the first disciplinary. He -did- get them after the appeal (heard by a different person), and found discrepancies - eg where a crucial "not" had been removed from his statement, that kind of thing.

 

What I feel I haven't stressed enough is the pathetic nature of the "accusations" for which he has been disciplined. I'll try and explain.

 

He's a stock man and one of his jobs is to unload the pallette coming in from the main national warehouse each day, tick the varios boxes off, unpack them and stack the varios items on the shelves in the right place.

 

One day he foound a box with no label, so he opened it to find out what was in it. It had was a large quantity of one item (regular shelf stock) and an odd item made by the same manufacturer. This was not unusual because manufacturers often include freebies when buying in quantity - they call it a "kit". If you order, say, 100 bolts, you might get a free spanner - that kind of thing. However, because the box had no label, and there were a load of other boxes ready for stacking, he put it to one side and went through the rest of the boxes, stocking shelves as required. When he returned to the mystery box, he discovered the label he hadn't seen before, realised what it was and marked it off. The nature of the business was that the box had to go back to the main warehouse that evening, and his colleague re-sealed the box at 4pm and it went back. It was then discovered tha the freebie "spanner" was missing.

 

I'm using "spanner" as a generic item, the actual item was worth about £30.

 

Let's be clear on a few things:

 

Most boxes are opened and unpacked to be put on the shelves in the warehouse.

Open boxes are far from unusual.

The only mistake was missing the label in the first place.

He has never been given any formal warehouse procedures, and what he did was exactly in line with his training (verified by the guy who trained him, and who accompanied him to the disciplinary hearings - he now works at another branch).

 

So... the disciplinary amounts to:

 

1) not marking off the "freebie" as excess stock (ie sent in error.)

2) Not sealing up the box after opening it

3) Putting the box in an undesignated area

 

He formally replied, in writing

 

1) There was no excess as it was part of a kit

2) This is a nonsensical issue, there are thousands of open boxes of stock in the warehouse.

3) There are no "designated areas" other than those the storemen have assigned to themselves (he's one of two). The box was placed in an area they still use to this day for items too big to stack, or simply somewhere to set thing s"to one side". It's a working area.

 

Hopefully you'll see that the "disciplinary" has no basis other than they can't nail him for the stolen spanner in the first place (I'd like to reiterate that he genuinely is innocent of the theft).

 

My interpretation of this whole thing is that he's been made a scapegoat because someone "on high" flagged the missing spanner and insisted someone get punished for it. With no evidence, his manager went after who he considered the easiest target.

 

In answer to the question of discrimination - I write this with the full knowledge that my friend will read this! He is perhaps open to that sort of behaviour, although it wouldn't be racially motivated and he's hardly Forrest Gump. I personally suspect he's never been diagnosed with dyslexia or similar. He's somewhat challenged in the height department too but I think simply that he's an easy target - he's too nice to have fought back when it would have made a difference.

 

SOOOOOOO:

 

I have already suggested that he insist on recording any private "conversations" with his manager(s), with their knowledge. On the one occasion he tried, they told him to turn it off. Does he have a right to insist on it?

I agree the tribunal route is a non-event for the time beign and a grievance is the next logical step - thanks for the input.

[stunned_monkey]

"My friend has been demoted, earning less for longer hours simply to get way from this guy - this is partly his choice," Partly? Please can you explain the circumstances around this?

 

SarEl.... would it make a difference?

 

Bascially he was promoted into the warehouse where he was working at the time. The company also does deliveries and the drivers (the job he previously did) earn less and work longer hours. He refuses to work "in the same building" as the manger in question, so they suggested he goes back on the road. I don't think he did himself any favours here, and he should fight fire with fire with his manager.... I believe he has to sign something to agree to this demotion and I'm going to suggest he doesn't.

[honeybee13]

Hello there. I think your friend should record meetings without telling them. This has been discussed several times on the forum and you don't have to tell an employer that you're making a recording. The recording can't be used in evidence itself, but a transcript can.

 

HB

[papasmurf1cx]

I agree with HB. Record it all with or without their permission. If it gets to another grievance then slap down the recorder in front of them and insist that this is his means of making notes. As there were significant errors in the first management notes it is best that there is an independent means to verify what was said. Perhaps that could be part of the grievance that the note taking was insufficiently accurate and actually ran contrary to what was actually said. Perhaps another aspect should be that he was bullied or coerced into the demotion because of the action of the manager and that he should never have been demoted but the manager should have been disciplined. It sounds like the senior manager has also failed to manage this properly.

 

If I were you I would delve into the background of your friend ie back to schooling and the like to find out if there were any conditions that were reported officially when he was younger eg was he a "special needs" pupil? There may be some sort of diagnosis that would be sufficient to enable the DDA to come into play.

 

I do have to say though that grieving about management over the box issue and the handling of it may well backfire on you. The reason I say this is because if you grieve about management procedures what you are saying is that there is lack of supervision. The management above your depot will never find against management on this because then that means that they too have failed to supervise their managers. They will stick together.

 

Further the system you describe, to an outsider like me, sounds very insecure. Open boxes "common" in the warehouse! You friend admitting to opening the box ( I fully accept he did not take 'the spanner') but failing to secure it immediately after, could in an ordinary person's eyes, be construed as aiding the actual thief to carry out the theft. It may not mean much to you as it is common place in your working environment but that does not make it right.

 

So your friend may be an easy target and that is wrong to bully and harass him for his niceness, but he did err and mangement may have a case for him to be disciplined. Whether that deserves demotion is debatable. What I would griev upon is the fact that he seems to have been made a target for common practices within the warehouse that are not right and that an urgent security review and protocol for opening boxes be implemented so everyone knows where they stand. Try an depersonalise the issue and place it on to practices that are wrong and which management should be looking at.

[stunned_monkey]

Thanks once again for the replies - could someone link to an explanation of why transcripts of secret recordings are admissable please?

 

 

I do have to say though that grieving about management over the box issue and the handling of it may well backfire on you. The reason I say this is because if you grieve about management procedures what you are saying is that there is lack of supervision. The management above your depot will never find against management on this because then that means that they too have failed to supervise their managers. They will stick together.

 

 

Point taken!

 

 

Further the system you describe, to an outsider like me, sounds very insecure. Open boxes "common" in the warehouse! You friend admitting to opening the box ( I fully accept he did not take 'the spanner') but failing to secure it immediately after, could in an ordinary person's eyes, be construed as aiding the actual thief to carry out the theft. It may not mean much to you as it is common place in your working environment but that does not make it right.

 

It's a large stock room for a retail outlet. The stock arrives in large brown cardboard boxes, and these are unpacked and discarded and the individually packaged items of stock inside are organised onto the shelves to be picked individually. It'd be a bit daft -not- to unpack, and keep re-sealing the original boxes. Either you trust your worksforce or you don't.

 

What I would griev upon is the fact that he seems to have been made a target for common practices within the warehouse that are not right and that an urgent security review and protocol for opening boxes be implemented so everyone knows where they stand. Try an depersonalise the issue and place it on to practices that are wrong and which management should be looking at.

 

Very good point - thanks!

[papasmurf1cx]

I am sure someone will be able to link you to the civil evidence rule at some point. However think of it not asa 'secret' recording but and aide memoir and means to note what has gon on. That electronic note then has be transcribed onto a document and produced in evidence as a true copy of the conversation. That would entail the witness to sign a statement of truth.

 

If you ask a lawyer if they will use such evidence invariably they will say that they would use the best evidence available to them. A recording and transcription of actual words used is the best evidence as it is the actual words used and can be independently verified in court by listening to the recording if it is disputed.

[honeybee13]

Hi there. I can't tell you which threads recorded evidence has been discussed on, but if you do some searches of the forum, you should find the older threads.

 

HB

[SarEl]

Hi there. I can't tell you which threads recorded evidence has been discussed on, but if you do some searches of the forum, you should find the older threads.

 

HB

 

The use of transcripts obtained without the permission of all parties to a recorded conversation is not straight forward. Whetheryour friend decides to go down this route or not you need to be aware that there is no guarantee that such transcripts will be accepted into evidence by a tribunal - case law has, on rare instances allowed such transcripts to be introduced where the information contained therein is "in the public interest" (which is not the same thing at all as in your interests). It is therefore very important that you do not depend on such transcripts for your evidence - if transcripts are all you have then this would be a risky strategy. The reason why this are is is difficult is because there are other laws which specifically prohibit the secret recording of individuals, and so you should also be aware that if you do this you may - although I cannot recall a single case of it - be sued. Just be careful you don't end up making case law in the wrong way! I won't tell you not to do it, but nor would I tell you to do it. Just that it may be helpful but there are risks it won't be at all. And it isn't true that lawyers will take their evidence where they can - I would consider the circumstances of the transcript and the recording, and relevant case law, before trying to introduce it as evidence - I do my clients no favours by adducing outcomes form evidence which I cannot rely upon. I would be hugely reticent to introduce such evidence without any supporting evidence at all, except in circumstances where case law is clear.

[honeybee13]

Thank you for that, SarEl. From previous discussions on the forum, I had understood it wasn't as complex as clearly it is. What would you advise our OP to do please?

 

My best, HB

[papasmurf1cx]

All I would say is that if you go into a formal situation and you have faced inaccurate note taking in the past, then it is not unreasonable to ask in these modern times to balance up the diverse positions between a company with mega resources and a 'challenged' individual that a recording as the preferred means of note taking should not be objected to. That is why I say that the OP's friend should be open and place it before everyone and explain as I have described.

 

Covert recording is another thing, but then again if an informal meeting is hurriedly arranged and is relevant to what is happening, why not?

 

I also think that if the DDA were applicable which still has not been clarified, then it is reasonable to ask as an adjustment to any policy, custom or practice to ask for a recording to be allowed. If the friend has a memory or mental deficiency it is at least arguable that the recording is allowed.

 

Surely also it is better to have this recording so the pros and cons can be subject to legal argument and the judge rule what is fair and just having regard to the size, resources ect of both parties? It seems to me that a large company with almost unlimited resources and an individual who does not should be balanced up in regard to what was or was not said. It is simply fair play and reasonable.

[stunned_monkey]

gain if an informal meeting is hurriedly arranged and is relevant to what is happening, why not?

 

I couldn't agree more - and I could post a lovely recording of him being told to switch it off - "I'm asking you nicely to turn that off..." etc. on the one occasion when he tried it. This was immediately after being told "We know you took it, so why don't you just admit it?" - he pulled out his phone and started recording so he'd have evidence. He was then denied access to the notes taken during the meeting.

 

I've recently advised him to tell his manager that in any one-on-one meeting, he insist on recording it. The manager's choice is that or to have a witness present. This is because he was given a pointless roasting literally the day after he came back to work after the appeal. (there's no need to dwell on this, he hadn't done anything).

[Allwood]

At lot of organisation building that has been recently upgrated will have rooms for intervews etc., which you cannot record in.. so it does not matter what you take in to the meeting it will not recorded.

[stunned_monkey]

Sorry, I don't understand? If an audible sound is made, it can be recorded.

[Allwood]

At lot of organisation building that has been recently upgrated will have rooms for intervews etc., which you cannot record in.. so it does not matter what you take in to the meeting it will not recorded.

 

Please ignore this post.

[SarEl]

Thank you for that, SarEl. From previous discussions on the forum, I had understood it wasn't as complex as clearly it is. What would you advise our OP to do please?

 

My best, HB

 

Legally I could not advise anyone to break the law. The law stipulates that there is nothing wrong with recording conversations for your own use - the infringement is making those conversations available to other people (and this includes transcripts). Tribunals are chary of turning this into a free for all appeal point to EAT, so generally tend towards being cautious about admitting them unless the circumstances are clearly covered in case law. My personal advice (not legal advice) would be that is an individual decides to do this (a) be cautious that you have sufficient supporting evidence to make a decent claim (don't depend solely on transcripts as they could be excluded and you are left with nothing and (b) don't get caught - because there have been cases where staff have been dismissed for doing this (and the dismissals have been upheld as fair). I know that some people do it, and have used such tapes to great effect to force a settlement - after a dismissal has taken place for other reasons. And I would not tell someone not to do it if they felt they must. Only that they should not overly rely on this method and beware the risks