Disciplinary - please help.

[Lougle]

My DH has been given notice today, at the end of the day that he will have a disciplinary hearing in 3 days time for unauthorised absence.

Can anyone help?

In May of this year, we were offered a free holiday. It was a one week break paid for by a charity, that was being held on a specific week. They were willing to make modifications to the premises to make it safe for my DD1 with SN, and provide her with 1:1 during the club each morning. An amazing opportunity for us as a family.

My DH put in his holiday request, and it was turned down because one other employee of my DH's 'function' in the company was booked off. Fair enough, he got there first, but it was sad because we can't access normal holidays due to DD1.

So, my DH asked for those leave days to be used on 4 other days (he works a 4-day week). He requested the 12th & 13th of August, and 10th & 11th of September. He was told this was OK, and typed the dates in his calendar of his mobile phone. The company do not give confirmation slips or any other written proof of holiday.

The week that DH was denied holiday for, he was asked to work a 5th day. His contract states that if he works a 5-day week on one week, he is to be compensated with an additional day off the following week, determined by his manager. (He has a Flexible Working Agreement because of DD1's disability). My DH agreed to work the extra day, and asked what day he would be given the following week. His manager infered that he was off on the Thursday and Friday anyway, so it would have to be the Tuesday. This resulted in a 1 day week, as he doesn't work on a Wednesday anyway.

His manager even joked that he himself was off that week so it didn't matter to him what happened.

On Thursday 12th August, his mangager's manager called, and asked DH why he wasn't at work. He told him he had leave. He phoned some time later, to say that he had no record of the leave request, although he did have one for September, and there was nothing in the diary. DH told him that his manager had been fully aware, and that it was all booked at the same time in May.

On returning to work, DH was called into an informal meeting, during which he pointed out all of the above. His manager now claims that he refused the leave for August 12th & 13th. However, there is no evidence of the original request at all.

They can't show that they refused the request, and DH can't show they accepted it (because they don't give written confirmation). The only 'evidence' is that DH had put it on his phone calendar. They said that they would need to consider whether to take disciplinary action. DH pointed out that a) his impeccable work record makes it quite unlikely that he would take unauthorised leave b) on the week he was refused leave he even accomodated their request for working an additional day c) His manager inferred that DH would be off on the Thursday and Friday anyway.

Today, at the end of the day, he got a letter informing him that he is to attend a disciplinary meeting 'at the end of your duties'. This implies that the meeting would be additional to his work hours.

It also says 'please be aware that the potential outcome of this meeting may vary from a warning through to dismissal if the incident is deemed serious enough'.

So on to the questions, and thank you if you have got this far:

1. Can they expect DH to attend a hearing outside of work time?
2. Can they give 3 days notice?
3. In the absence of firm evidence, can they discipline him?

Further background - they dislike DH's FWA, and are putting pressure on him to return to a 5 day week (they 'inherited' DH's contract when they bought the company from his former employer), with them having said that they might have to look at his job role.

Two weeks ago, he was asked to do additional hours and said that he couldn't, and despite having adjusted his hours, worked an additional day and worked overtime on another day, the manager's manager said that the FWA was 'working all one way at the moment' and he would have to 'see what could be done this end to rectify it'. DH at that time felt threatened that he would lose his job.

His van which he performs his duties in is being sold tomorrow. It is not being replaced. The general conclusion is that there will be x vans, and x +1 drivers

It doesn't look good, does it?

I would seek advice from a solicitor, most offer a half hour free consultation.

1. They can't really expect him to attend a disciplinary outside of work hours. Though you can't refuse a reasonable request for overtime so say a half hour at the end of the shift while bot best practice doesn't seem like its breaking any rules. 2 hours after shift end would probably do.

2. Yes, as long as its over 24 hours notice they can do a disciplinary meeting. Remember he can take a witness as long as they are a trade union rep or work there they can't say no. If they agree he can take anyone.

3. They can discipline him with no evidence at all. Just making it stand up against a tribunal would be very hard if they don't have any.

It would be unwise for them to discipline him based on what you say - they may go for a 6 month file note. Anything more (even a file note is a piss take) and you should go to tribuneral.

He has a Trade Union, but I doubt that they would have anyone able to come and represent him at such short notice. Are Unite any good? That's who he is with, but he's never needed it before.

He really is a good employee. He keeps going even if he is really quite ill. In fact, once it was only at the point that he vomited in his vehicle that made him turn around and go home sick.

Hi There. I used to be the Director of a major corporation until 18 months ago and so had an HR Dept at my disposal so i will try and offer you some practical assistance. I would agree with the last posting to see a Solicitor, but this will be expensive. I can recommend a great one, but you are talking about £220 per hour after a free consultation. I would also try the CAB. It is also a little-known fact that Sometimes with your home insurance you will have access to Legal assistance so I would dig the policy out and see if you are covered.

Firstly, I know that it is difficult but stay calm. encourage your DH to remain calm however upsetting the meetings may get. If there is wrong-doing the law will be on your side. From now on, he must go into writing with everything. Do not deviate from this as if it needs to go to a tribunal he will need to write everything down. It is also worth your DH writing a recollection statement of eveything that has happened so far which he should bring with him as this is a stressful situation and he may well forget to mention something when in the pressurised environment of a disciplinary meeting. Going in with a well-prepared file will unnerve the person conducting the disciplinary and will give your DH confidence. Remember the firm will have one point of view your DH will need to present clearly the other. He must also dig out the last Company handbook that was issued to your DH as the Company has an obligation to follow its own set-down procedures.

The short answer is yes, I remember that 3 days is allowable in terms of notice provided they are accepted working days, not over a weekend that your DH would not be working or his accepted day off. It is highly unusual to ask for this to be done in his own time and I think that a written request should be put in to ask for a time during working hours. I would do this straight away.

The first meeting, (however informal it was suggested that the nature was to him) actually an investigatory meeting and as such your DH should have been informed that he could bring a work colleague to this and any other suggested meeting. These colleagues are as support only and are allowed to take notes but should not ask questions. Your DH may ajourn the meeting at any point as may the firm. At any disciplinary meeting he will be allowed this to be extended to a Union Rep. If he doesn't belong to one, I would consider doing some homework tonight to see if he can join one and get some suport. Also review the ACAS website as this has some very good information for employers and employees. It might be worth reading the legislation from both parties point of view to gain insight on what your DH's firm believe that their position might be and what they feel that they can do and/or what their next step might be.

Finally, the good news is that the exisiting employment Law exists to protect workers from blatant 'squeezing out' by way of either trumped up charges of misconduct or via redundancy. For this your DH must keep very good records of any meetings (take copious notes during and write up straight away) so that in the event that this reaches a tribunal you will be able to produce some evidence of your own. You may represent yourself at a tribnal but this may be daunting. Flexible working is not always supported especially in times of austerity, but your DH's willingness to alter days of work will be in his favour.

Finally, if you believe that there is some sort of sinister plot out there to oust your DH then he must ask for the name of the data protection officer of the firm and formally request a copy of any communication held on file or data server at the firm (including deleted emails!)which details his name. This is his right although from memory you need to offer a nominal £10 cost towards printing. At a tribunal this information would need to be disclosed so if you can get it early that would be beneficial. The mere request itself usually sends a firm into panic as you can usually guarantee someone will have written something that they shouldn't.....!

I hope that this helps. I really feel for you both. Remember he is fearing the worst but preparing for it will make you both feel more in control. Don't pick a fight for the sake of it no matter how indignant you both might feel. Read up tonight, get some expert advice tomorrow and try not to worry.

Best of luck!

Thank you Pradaqueen, and everyone else who has posted so far. It really is daunting, and doesn't help that he is not able to be articulate under pressure and hates confrontation. I can 'do' these sorts of meetings, but of course wouldn't be allowed within a mile.

THe above is sound advice. I went through the tribunal proceedure end of last year and the one bit of advice they gave me was in every meeting that you have, request minutes from. If these minutes are in your opinion not true to the events of the meeting put it in writing to them.

I agree with the confidence comment, if you walk in with a file etc looking like you know exactly where you stand etc they will 'panic'.

Also you said the van has been sold off and not been replaced, if he can get proof of this that would be VERY good as it proves they are trying to 'squeeze' him out!

No problems. Wish you both luck. From memory the firm will be obliged to reschedule the meeing to allow for Union presence (At the very least it is seen as being fair) but they are usually very good at being available at short notice.

This all sounds a bit rough on your dh.

How long has he been employed by this company?

Do they have a Disciplinary Policy/Procedure?

Has he had any previous disciplinary action taken against him at this company?

3 days notice is ok; not masses, but reasonable. If your dh wants a witness - a TU rep or work colleague and that person can't make it, then the company should re-schedule the disciplinary.

Wrt evidence, I would think it will be difficult for them to prove, and will be a case of someone's word against your dh's.

As an HR Manager myself, I wouldn't feel at all comfortable going in to a disciplinary without evidence; seems more like a matter of mis-communication.

Good luck.

Hi Sexonlegs

He has been employed by company A since 2008. Company B bought out company A earlier this year, and DH was TUP(E)'d across.

They do have a Disciplinary Policy/Procedure, but they already haven't followed it because they didn't inform DH that he was going to have an investigatory meeting, he was just called into the office & no opportunity to take someone in with him.

He has NEVER had a disciplinary action in all his working career. He is genuinely one of the most diligent, conscientious men I have ever met. His sickness record is impeccable. He had two days off for a severe D&V bug (literally couldn't leave the bathroom for hours) but other than that has had no sickness with this company.

There is and can be no (legitimate) evidence. If DH is right, and they have lost his holiday form, they won't have it. Even if they had conveniently lost it, he wasn't given written confirmation, as they don't do that. If they are right and they rejected it, again, the employee is not given anything in writing, and the manager throws away the holiday form (helfpul ).

Stacked against DH is the fact that his FWA is an inconvenience to them, and he is the highest paid driver on their books, because he was employed by a small company whose MD knew him personally and headhunted him from another firm, so matched his salary from that firm. That means that he is on a (pro rata) salary of around £4000 pa more than his colleagues who do the same role.

Additionally, when company B bought company A, they wanted all the company A employees to 'harmonise' their contracts, and sign Company B contracts. After researching and asking advice on MN, DH told company B that he felt that to do so was to breach TUP(E) regulations. They asked him to write a letter with his concerns, which I did (I am more able to articulate these things than DH) and he signed; this letter was passed to their lawyers. The lawyers wrote a letter saying they were looking into it and would reply soon. They never did. I suspect that is because the answer was 'you are right, they are breaching TUP(E) regulations'.

Finally, after a few months, they approached DH and said 'if we keep everything exactly the same except a change to weekly pay instead of monthly, and the name of the company, will you sign a new contract?' DH agreed. But everyone else signed a new Company B contract with new (inferior) terms and conditions.

There is no-one left from Company A now, except DH. They have managed to get rid of all of them in one way or another.

(£4000 is around 25% difference, btw, so although compared to some markets insignificant, it is a substantial difference in DH's type of role).

They sound very devious.

I cannot possibly see what they can pin on your dh imho.

Can you keep us posted after the event please. If you dh is issued with a disc warning/dismissed then he should be given the opportunity to appeal.

Let battle commence!

Hope you and your dh are ok.

I would make sure that a union rep attends even though it may mean the meeting has to be rescheduled. If this has to go further, I feel it would be useful to have had them involved from the start.

He should write down exactly what was said to whom and when and take that with him. As it is a case of his word against someone elses, he needs to be prepared to state, over and over again if necessary, that there is no proof of what the management are saying any more than there is proof of what he is saying. He should make his own notes during the meeting. Perhaps he could also suggest that a more formalised holiday request system be put in place to avoid confusion in the future.

Good luck :)

Agree with TigerFeet.

Unite is great, but would make sure you get a full time rep/organizer to represent your DH. They are fairly used to being called and asked for representation at short notice, and will speak to the company directly if needed to re schedule.

Try not to worry.

Thanks everyone for the support, we will be phoning Unite at 9am so hopefully they will be willing to support DH. He doesn't work on a Wednesday, so at least that gives us a day to prepare for Friday.

Good luck with Unite today, I hope they pull through for you.

Having considered your situation overnight, I think that you need to be mindful of the next situation which may come after the disciplinary and that may be reducing the driver headcount. If this is the company's aim, all of the drivers will be placed at risk of redundancy whilst consultation takes place. It is usual for a points scoring system to be applied to all of the staff members placed at risk of redundancy and a good firm will allow the staff input into the areas which will be weighted as opposed to imposing on them.

The person with the most or least points (depending on the system used) will be the person who ends up being made redundant. Usually staff themselves come up with disciplinary record, absence records, time-keeping at the primary areas of focus. You are not allowed to merely apply the old LIFO (last in first out). If your DH does receive a disciplinary sanction on Friday he must fight it as this may have a hugely detrimental effect as to his future with the firm.

From a purely practical point of view if the firm are looking to reduce costs it may be that they are doing so in order to stay afloat.(I don't know how big an organisation it is) you may need to consider that although your DH receives £4k more than the next person (and well done him for brilliant negotiation!) they might need him to take a pay cut in order that he remains employed. As the old saying goes, sometimes it is better to get 80% of something than 100% of nothing.I wouldn't suggest volunteering this information, but keep it at the back of your mind. A FWC in your situation will be worth a great deal to your family so tread carefully. In all, it does seem as if they are not receiving fantastic advice and choosing the bits that they want to hear.

Best of luck as you move forward.

Pradaqueen, I hear you. I don't know if we could afford for DH to take another cut in pay, he only brings in £14400 pa before tax as it is.

The other thing I would suggest is check your household insurance to see if you have personal legal advice cover they often do. This could give you access to some free legal advice.

Firstly in light of the van going, this sounds like an attempt at constructive dismissal.

Have they told him he has a right of representation at the meeting? If they have, he should make absolutely sure that he takes soeone in as a witness. If not, I am pretty certain they are not following procedure.

1. Can they expect DH to attend a hearing outside of work time? I'm not sure, but if I was in your DH position, I would go.

2. Can they give 3 days notice? I think they can.

3. In the absence of firm evidence, can they discipline him? I think they would have a very, very weak case and should have covered themselves with a written process which included leave either confirmed via email or better still, by signature on a leave slip, which he could have kept a copy of.

So I think they have a weak case against him, basically.

Thanks. Well, so far Unite have been spectacularly inefficient. DH phoned them at 09.00 and was told someone would return his call. 2 hours went by, so he phoned again, and asked when he could expect their call. "In a few hours, they have meetings". Finally, at around 3pm he got a call from someone, who said that it really needed to be another office that dealt with it. He said that his colleague from that office would call DH directly, but so far no call.

This means that DH has to write a letter, but doesn't know when he can get representation, so can't be detailed in his return letter.

Good luck today.

Thank you, I think it will be next friday now because the rep can't do today.

Do check your insurance as a poster mentioned below.

Do look around for lawyer: some give 1st hour free.

Good luck!!!!!!!

Thank you for all the advice. DH didn't hear anything about the time for tomorrow's disciplinary, so phoned his union rep, who phoned the director of the company who was going to hold the disciplinary meeting.

They have now decided (without telling DH) that he is not going to be disciplined, but the director will have a 1-1 with DH, so he no longer requires representation from the Union .

All sounds a bit dodgy to me.

I don't know what made them change their mind - either the request for evidence (there is none), the fact that he had a union rep ready to attend, or the strong tone to the letter I DH wrote last week denying all accusations, insisting on the disciplinary to be held in his normal working hours and requesting that the evidence be given to him 48 hours prior to the disciplinary for him to consult with his union rep.

Or perhaps it is the fact that the Disability Discrimination by Association laws are coming in, and they know DH could sue.

It's not the last one, the change won't be retrospective...

Good outcome. I'd go and have the one raceone, but have your DH ready to say that it shoudl be postponed to a proper disciplinary if they seem to be going down that route.

Mind you, sounds like they are looking for a graceful exit...

Yes, it does, doesn't it, RibenaBerry? DH is convinced they are going to try and pay him off today.

They've done that with 2 of his old company's employees already. One sued them because he got injured during the really bad weather last year, and they didn't have a 2nd person at the depot, so he was lying on the icy ground waiting for an ambulance - they settled out of court, then offered him a week's pay to leave.

DH would only be entitled to 2 week's redundancy pay, so no great shakes there. I think he just wants out of this vile company, but in today's job market it is essential that he isn't seen to leave voluntarily because he would be sanctioned by the Jobcentre if he had to claim JSA.