Urgent - depression and gross misconduct. Hearing on Tuesday.

[Workstresshelp]

Any help you can give would be massively appreciated, sorry this will be long don't want to miss out anything important.

DH has worked in a retail type role since March 2013. He was originally contracted to full time hours (37.5) but reduced this by mutual agreement in March 2014 to 12 hours, his actual working hours are normally 20+ per week.

DH has been suffering from depression, he visited the Dr in July and was given anti - depressants and a fit note for work, with the adjustments to conditions box ticked. He had a brief chat with his manager on handing in this note about if there were any adjustments they could make but DH couldn't suggest any and nothing more was done.

At the start of August DH lost it about an hour into his shift. He felt criticised by something and under lots of pressure. He slammed down a phone which was in his hand on to the desk and walked out. He called in sick the next day and has been signed off by the Dr since then.

He had no contact from work at all during this time.

Last week he asked the Dr for a fit note and tried to return to work (been off about 5 weeks). Honestly I'm not sure he's ready but he's been getting no sick pay and we're really struggling. His manager told him that they needed to carry out an investigation into the incident where he walked out and would be requesting medical evidence from his Dr - DH signed the form to ok this. They suspended DH on full pay while investigating.

They also told him at this meeting that his colleague had given a statement a week ago saying DH had hit her with the phone (not clear if she said deliberately hit her or accidentally). She hadn't given any statement about it earlier. She has some form for random lies about things. DH denies this and requested they check the shops cctv for proof he hadn't done this. Manager said he would check the cctv the next day.

Today DH has received a letter inviting him to a disciplinary on Tuesday morning, it says they will be looking at gross misconduct and he may be immediately dismissed. It's not clear exactly which bit they're looking at - the walking out or the phone or both. DH spoke to his manager today who basically said they don't have the cctv because it gets deleted after a month and they would discuss everything at the meeting.

Is there anything at all he can do or say that might help him keep his job? Prior to this he had an excellent record at work and it just seems awful that his being ill has led to all this.

Thanks for reading .

Sorry, don't have any specific advice, but can he talk to a solicitor before? He should be entitled to bring a witness too. Maybe Citizen's Advice could help?

It might have nothing to do with the phone ? AWOL is counted as gross misconduct . Has he been given a letter / pack for his meeting so he can answer their questions. Is should state the alleged gross misconduct ?
Give acas a call.

Is there something in their policy about keeping in touch when off sick . 5 weeks seems a long time to have not been at work and not had any update. Did he have a Back to Work interview ? Suggest he takes someone along to the meeting ideally a union rep. Could his reaction to the phone conversation have breached any guidelines?

Thank you for the responses. He had a back to work meeting when he took in his new fit note. It was at that meeting they told him he was suspended pending investigation, then nothing until the disciplinary invite arrived.

The letter just says the incident on such date and your behaviour may constitute gross misconduct.

Which it does I would think.

I guess I just want to know if there's any hope that him being ill will mitigate it in some way.

He phoned Acas but they didn't seem sure about anything and just gave him a phone number for something to do with equality?

If it's regarding the hitting of the colleague, I'd want to find out exactly when she made the statement - was it within the month's cctv retention period and if so why didn't they check the cctv as soon as the allegation was made. Were there any other witnesses to this incident and have they been interviewed? Did the incident take place on the shopping floor in front of customers as that would be viewed dimly or did the incident happen off the shop floor. Who was the phone conversation with and what was it about? Was your DH being treated fairly at the time or were there any mitigating factors which combined with his depression led him to lose his temper?

No contact from work is very unsupportive to an employee with mental health issues.

DH asked why they hadn't already looked at the cctv, they said it was because they didn't want to start investigating anything while DH was signed off.

Previous to this DH has had some issues with a new area manager who he feels targeted him about things for no reason. I'm not sure how much his depression affected that and how much it affected his depression iykwim. An example of this would be DH often works weekend shifts because it suits us for childcare and suits the shop because no one else particularly wants to work weekends (no extra pay or anything) the area manager told his direct manager that 'DH shouldn't be allowed to choose his shifts and should have to work more in the week' his direct manager explained that wasn't what was happening and it met the shops and other staffs needs. Nothing major but he didn't say anything about anyone else's shifts and DH felt more pressured by this. There have been other similar small incidents with this manager.

The phone conversation he had had was trying to sort out a problem in the shop, the colleague he was with should have been responsible for this job really but said that she 'didn't know how to do it' despite being the shift manager. DH had run around finding numbers and having no luck fixing it and was frustrated by that and by his shift managers lack of help.

The incident was in the back of the shop so not visible but there may have been customers who would have seen him walking out of the shop. Afaik there are no statements from any of them.

Statement from colleague was made exactly 6 weeks after the incident, so about the same time DH got his fit note. I'm not positive if it was given after DH rang them about coming back to work (when they requested a fit note) or coincidentally just before.

So after cctv retention period but you'd have thought they would have checked it anyway for the walking out stuff?

He should know what he's accused of and what evidence the employer is intending to rely on. He needs to clarify it with them.

Agree with PP about checking out the ACAS website. They have some good clear guidance about the sorts of things that might constitute misconduct/gross misconduct, some best practice guidance about how to treat employees and also some info about the timescales employers should aim to meet if they want to undertake an investigation.

Can someone accompany your DH to the meeting? Sounds like there are a lot of questions requiring answers, such as on which date was the decision to invoke the disciplinary policy and investigate? And how long after that was the written notification supplied to your DH? Some of these delays seem a tad "convenient" in the face of needing to make reasonable adjustment for your DH's return to work. I am not minimising the walking out, that's obviously not great, but a doctor's note within 24 hours really should change the context.

How did you get on ?

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I'll try that again.

He spoke to HR yesterday and they changed the person who was chairing the meeting (previously it was supposed to be the manager he'd had issues with).

It seems that all the phone stuff and even the walking out was a bit of a red herring and the 'behaviour' that was meant in the letter was actually swearing in front of customers - he said 'fuck this shit' as he was walking out. They didn't have any evidence of anything other than the statement from the colleague who it turns out left the company 2 days after giving it. DH had admitted to swearing when they first spoke to him (when he handed in the fit note).

The manager they got in instead was very sympathetic to the situation and acknowledged where they'd been less than supportive and will investigate why there was no contact from anyone and why the statement was taken so late / cctv not checked. He said given the previous good record, earlier fit note and the immediate sick note he felt that this was a genuine case of illness being responsible for the behaviour.

He gave DH a first written warning for swearing which he said was the least punitive option he had given DH had admitted swearing, no matter if it was overheard or not and that would be gross misconduct.

So we're very happy and relieved. I'm not sure if maybe they've gone this route because of how poorly they managed the situation in the first place but to be honest I don't care so long as he still has a job. The warning will get removed from his record after a while anyway.

Thanks so much for the thoughts and advice. It really helped us think it through and put over DH's side clearly.

He has to arrange a meeting with his area manager to clear up any issues between them but should be back at work next week .

That is terrific ! Really pleased for you .