Personal notes at work gross misconduct? Consistency? Discriminatory behaviour?

[vindicator]

My wife, has been threatened with gross misconduct, suspended and has a pending disciplinary hearing/meeting. She has been informed verbally (not written yet), that this was regarding an incident where her manager saw her writing private notes at work (in a work document, which they said was her deliberately hiding it), her manager then screamed at her humiliating her in front of her colleagues, and warned her doing it again would be her out. She has possibly written personal notes prior to this, never altogether more than 2 pages, her notebook was once found by her manager which she had left in the office after lunch (a result of writing in lunchtimes), and was left on her desk by her manager without any warning or questions. My wife sent her an apology email. Next day she was called into a meeting with her managers manager, where she was informed that her machine was being investigated, due to this incident, they didn’t know what the decision would be from here but he has declared this to be a gross misconduct. He even stated that he was happy with her performance in her role, and couldn’t believe she’d written personal notes in hours, that he was disappointed and that it was gross misconduct. I’m yet to know what the staff handbook contains.

 

She is yet to be told what the outcome of this is, she hasn’t been dismissed for gross misconduct yet. There have been no warnings about this, she has never been caught doing it before etc. Her performance is immaculate, she was one of the only people to have her pay increased this year and get employee of the month, she has numerous emails reflecting this and has worked with the company for 4 years. This has never hindered her performance; she out-performs everyone that works there. This was literally her manager seeing her write something personal, screaming at her in front of everyone, and then being informed this WAS gross misconduct. Even on that day (provable), she worked 30minutes extra to what she has been paid and this was essentially done in that time.

 

It’s a moderately small company, my wife is of ethnic decent, female and married a year ago, her manager made reference the management (manager’s manager) to her not getting more responsibilities since she might get pregnant (non provable, all verbal) in her appraisal...

 

He’s made some horrible comments in the past (the managers manager, which I wont go into right now unless you’d like to hear them) again verbal, non provable (even one, a couple of years ago regarding them sponsoring her visa, when my wife requested to know whether they would sponsor her visa for the next year, that she needed to know, he responded that, “if she told him what to do he’d send her home” (paraphrased).

 

It’s also important to note that mid 2012, another employee was discovered to have stolen company property, his training records. This employee was perhaps disciplined (unknown) but left of his own accord Jan 2013.

 

Also, importantly one year ago, my wife was publicly bullied in the office by a colleague (in front of her colleagues), this was recorded officially, and the person may have been disciplined (unknown), but they continue to work there even now, and was not grounds for gross misconduct.

 

There was a warning from HR on behalf of her managers manager, stating that there was a high internet usage in office hours by employees and this was not acceptable and if anyone was found to be using the net in excess would be liable for a penalty (financial). There has been no warning about not making personal notes. People continue to use the internet for personal use, managers manager acknowledged this in the meeting and said “that’s different..”

 

 

Would this constitute gross misconduct?

 

She no longer feels she can work at this place, she’s emotionally fragile and has been humiliated on several occasions. Is this constructive dismissal.

 

Is this proportionate and consistent when they have excused bullying (the bullying was recorded against my wife, and the person still works there…) and theft in the past?

 

How can I collect evidence? Do we have a right to access her emails etc.?

 

At the disciplinary meeting, what can I do (I plan to attend..) what rights do I have to request information? Can I request any? Can I record the meeting? Can I request a similar investigation to be done on a colleague machine (to detect whether this is discriminatory?). Should I declare I intend to take this to employment tribunal?

 

 

Thanks in advance for any responses. Help would be wildly appreciated.

 

Kind regards

 

 

Nathan

[Emmzzi]

What do you mean by a personal note? That could be anything. Example please?

[honeybee13]

Hello and welcome to CAG.

 

The guys should be along later, but I have a couple of comments.

 

I'm not sure what you mean by personal notes, could you elaborate please?

 

Here's the ACAS guidance on disciplinary matters; unless you work for the same firm, I think you would not be able to attend the meeting.

 

13.Workers have a statutory right to be accompanied by a companion where the disciplinary meeting could result in

• a formal warning being issued; or
  
• the taking of some other disciplinary action; or
  
• the confirmation of a warning or some other disciplinary action (appeal hearings).
  

14. The chosen companion may be a fellow worker, a trade union representative, or an official employed by a trade union. A trade union representative who is not an employed official must have been certified by their union as being competent to accompany a worker.

 

http://www.acas.org.uk/index.aspx?articleid=2177

 

Do you have an ideal outcome from all of this?

 

My best, HB

[vindicator]

Thanks for this.

 

Apologies! that was ambiguous, my wife's hobby is creative writing, so it was notes on storyline etc, totally innocent. Nothing even slightly offensive/inflammatory.

 

I've discussed this with my wife, ideal outcome I don't know, she can't work there anymore, she's devastated.

 

I was concerned I wouldn't be able to attend, I'm not a colleague. But she's not in a fit state to argue her position. They knew that. It's a company of 20 people, so no union, and colleague would be to afraid for their own positions to assist.

[Conniff]

Ensure that she has her mobile in her shirt pocket and records all that happens. She is entitled to take notes but a recording of what happens is better. She does not have to inform them she is recording and it should be moved onto a computer for safe keeping.

[hilly860]

Hi, An horrible situation. I believe the person/colleague who accompanies your wife can't act or speak for your wife, they are there as her witness and moral support. She can ask for any disclosure she thinks will support her defense but I'm not sure of your case, you're on sticky ground here, for example from an unbiased view of what you have said here are my conclusions, Your wife was seen doing personal work in work time and then admitted it in a written apology she was warned about it verbally(not in the best or professional manner granted) pointing the finger at other staff who she suspects or knows do the same thing might not be the best defense, you aren't privvy to other staffs HR records and you can't ask for them to show if action was taken or not. Not specifically anyway you might get away with asking about percentage of work force found to be using work time for personal and percentage of these given further action. Anything said verbally is admissable evidence, if anyone over heard or similar things said to them it adds to the picture but calling witnesses is more at the tribunal stage. She is entitled to a copy of the employee handbook where it should be stated the discilplinary procedure is. If it then goes to tribunal it will be looked at whether this was followed. In the mean time look about for a better job.

[vindicator]

Will do Conniff.

 

Hilly, in answer to your points. Surely though, the manager warning is proof it's not a dismissible offence? If she wasn't even telling her that at the time, that means the manager is not aware of it.

 

It sounds petty, pointing at other employees. I was more trying to state this response was not consistent or fair, and that would point to discriminatory in my mind. She would happily admit the truth, she was writing some personal notes, but considering she had worked an extra 30minutes on that day alone, she considered it part of that time. The manager did not even ask for her side of the story at the time.

 

I don't understand how this could be considered gross misconduct, breach of trust? I know gross misconduct circumvents performance, but her record etc has not been taken into account at all. Her performance has never been in question, there has been no warning. I can't see how this could constitute gross-misconduct, when theft and bullying (which is always cited as an example of gross misconduct) fail to. Surely that's not fair or consistent? But disproportionate and discriminative?

[Emmzzi]

so I'm clear - he was warned - and then she was found doing it again?

[vindicator]

Hi Emmzzi, thanks for the response. Nope, when she was discovered at her machine writing the notes by her manager was the first time she was ever warned about it, the next day she was taken into a meeting room and told it constituted gross misconduct and that the disciplinary hearing is next week.

[Emmzzi]

I'm not overly optimistic, Doing your own work on company time isn't on - even if you have done a mental calculation yourself of trade offs on time worked.

[vindicator]

What about the point on fairness and consistency? surely it is un-proportional in response, and more of a performance effecting issue that requires a warning etc etc. How can bullying be forgiven with a slap on the wrist, and this writing notes (just to be clear this wasn't "work" this was just notes on thoughts while working) incident is grounds for gross-misconduct? Even the warning for all the employees on internet usage has not been followed up?

 

This is time that she has not claimed for? and explained that at the first chance she was given. She had no outstanding tasks at the time, but was told in the meeting after she could "have gone and found some".

[hilly860]

Hi, ok it seems you have 2 different issues here, 1 the bullying by a colleague, but you say action was taken and it hasn't continued? So it might have been seen as a training need and that's it dealt with, again you don't know what's on their personel file ie a written final warning which will keep them in line. 2 was the policy followed for the gross misconduct, again you need to read the company policies which should be available to you/wife. for example my company decides what it constitutes gross misconduct, with guidelines given, and states I don't have to have any verbal/ written warnings before it jumps to a final warning stage/action if the offence is considered serious enough. so not a great help but it sounds like her line manager took it to her manager and he decided it merits this action, which they can do. The hearing is to discuss all thats happened and investigate it, it's not a predetermined outcome, or shouldn't be.

Also neither party have a right to record the meeting, she can record with consent or if she can't take notes for example. And if she decides to do it covertly a future tribunal would probably allow it as evidence.

[Emmzzi]

I am not sure you are going to be helping your wife much with the line of "you have done nothing wrong" or "If you have done anything wrong other people have done worse."

 

You need to forget the bullying issue and focus just on the misconduct. Clearly they want her out anyway and she has handed them a reason on a plate, and admitted it in writing.

 

I think you need to be more realistic about the likely outcome here.

[vindicator]

Hi Emmzzi, my wifes aware she has done something wrong. She apologised for it. But my point was that surely thats not proportionate in response if other employees are assigned a must lesser response for what i'm sure people would judge as a more severe act. But agreed, can forget about that.

 

The misconduct is just that. But gross misconduct?

 

I can't believe all of the discussed above is considered okay and not in breach of employment law, very disappointed. This person is awful. And I also don't understand, all the reading I've done into this indicates things like that their time with the company and previous conduct should be taken into account. You don't seem to think so?

 

We're happy with her leaving, but I'd rather not have her suffer the indignity of the disciplinary hearing. She's not emotionally able to go through it. She has a few weeks of leave and a month of notice. But she never wants to go back.

 

If she quits now can she avoid the disciplinary?

[Emmzzi]

The test an ET would use is "is this action within the range of actions a reasonable employer would take." There are many factors to be taken into account but it sounds like this employer is not inclined to be kind. They take a gamble on using this evidenced indiscretion to get rid; they gamble you won't want the stress of an ET and you may not win. You have some militant posters on here that will agree with you and tell you to go in all guns blazing; my concern tends to be more about mental health than justice.

 

What matters here is what is important to your wife, not you. She would like to leave, and as soon as possible. She also seems less confrontational that you?

 

I'm not sure planning to go with your wife, getting riled up, and getting angry, is the most supportive and constructive thing to do for your wife right now. It sounds like you expect them to dismiss; practically does her first priority need to be finding another job? (ETs are expensive stressful and can take a while to come to court.)

 

They can hold a disciplinary in her absence. She still has a notice period to work, yes? They can require her to work that if they wish; and pay her leave at the end.

[vindicator]

Hi Emmzii, yeah agree with you there, very angry about her treatment.

 

So, how would be advised she proceed since she never wants to go back? She wants to quit rather than the gross misconduct thing. She's considering writing an email, requesting to quit rather than being dragged into the disciplinary, and negotiate not serving her notice period (compensate with sacrificing annual leave) or something?

[Conniff]

In my view it would be silly to let a company who still believes in slavery get away with pay they lawfully owe.

[Emmzzi]

don't put stuff in writing, have conversations

 

if she has work related stress leading to depression I might get signed off with it... you say she is not emotionally able to go through the meetings?

 

you need to encourage the company to give a little. Reference is more important than money, I'd say. You need to think about your best possible outcome.

[smokejumper]

Wanted to give some advice, but as I read further I got confused.

 

I'm not trying to be funny or awkward but in my opinion you seem to be getting frustrated or annoyed that members don't see it from your point of view, the Employer will not see your point of view as they won't want to.

 

I see a problem with mentioning the extra 30 mins unpaid, in that they may then say, if you hadn't been doing personal admin they you could have left on time ( was the 30 min, after she had been found out).

 

Their actions may very well be discriminatory, (which type are you thinking, sex or race?) however it is very difficult to put a case together, as your allegations have to be so precise ( to the point that I wonder why they have a judge) and is a lot of work if you do it your self and about £900, then if you want to be represented can cost around £20,000 and you don't get the costs back.

 

I wonder if they are claiming it as gross misconduct, through theft of time, workplace discipline cases look a 100 times worse on paper.

 

If she no longer wants to work there then as you have mentioned, she could leave, asking for a reference and no discipline action.

 

If she leaves anyway, a reference could state resigned pending discipline action for gross misconduct etc.

 

You need to decide which way you want to go with this ie: et or not.

 

et may be plan B , so keep in mind time limits ( 3 months, less a day).

 

Members can advise you on either way and will be pleased to ( I'm sure, but hope they don't mind me saying).