Just be suspended from work for asking for statements from witnesses

[user1499175449]

Hi Guys

Sorry for this being my first post but I am in a tailspin and dont know what to do...

There was a incident at work where someone hurt themselves in May, I got told last week I would going to be put on a disciplinary for this... this was after 4 statements were taken by personnel, me and my 3 co workers...

on Friday after learning I was being disciplined I checked my works policy and it said I was allowed to gather on my own statements of evidence... so I asked my co workers for a statement saying they fel it was not my fault, this was done under no duress and would no take offence if they refused, all of them readily agreed, these were the same co workers that were there at the incident...

I got called into the office this morning and told I was being suspended after an allegation was made that I had tried to get my co workers to change their statements, I had 100% not done this, I had asked for new statements to try to show personnel that I was not at fault, but obviously their witnesses are my witnesses...

and now I am in a tail spin as I have been suspended on a gross misconduct charge :( which means dismissal if found guilty) but have I done anything wrong asking for new statements from the same people? as how can I defend myself if I am not allowed statements from the workers who witnessed the incident.

Hope that makes sense, and any help will be much appreciated

Contact ACAS, see if they can help.

Are they the same co-workers who had originally given statements? If so then that is highly inappropriate as their original statement should reflect the facts and by virtue of you asking them to give another statement implies you are asking them to change their original statement.

Apologies if I have misunderstood. (And overuse of the word 'statement')

Well you say you asked them for a statement saying it wasn't your fault.

It sounds like they've already given their version of events once?

Yes, you said you asked for a statement 'saying it wasn't my fault'. That's pretty leading.

Do you think it was one of the three witnesses who has made the allegation or somone else?

Possibly the way you have worded your OP but it sounds like you asked your colleagues to state they felt it wasn't your fault? If so it may be that one/all of them said to you directly that they were comfortable with doing this but then spoke to HR about it?

Its possible they are seeing this as you potentially wanting to disrupt the process, especially as they have already given statements. Had you seen the first statements they gave before asking for your own?

If you were asking members of staff that had already given statements then you should just receive copies of those original statements.

Asking the same people for new statements is inappropriate and would come across as you trying to manipulate or change their testimony.

I'm sure you didn't do that though?

Absolutely right to suspend you in those circumstances.

One of the key things about a disciplinary situation is that witnesses aren't interfered with, pressured or intimidated by the person being disciplined. It certainly sounds as though you were not happy with what the witnesses had said in their statement and were trying to get them to change it, which could involve intimidation or similar, whether intentional or not. If your employer allowed that kind of behaviour then no witnesses would ever come forward to provide statements in these situations as they'd be afraid of the repercussions from the individual they were giving a statement about.

If you weren't trying to get them to change their statements and were happy to accept their statements as they were, why would you ask them to do another one?

'Defending yourself' doesn't mean trying to persuade witnesses to change their statements. It means addressing the contents of the statements/any allegations made in your disciplinary hearing.

Did you ask for them to write a statement for you or ask them to write a statement saying that it wasn't your fault? 2 very different things.

A suspension is generally a required step prior to dismissing someone (ETs don't like if employers don't suspend those they think could be dismissed).

Depends on your employer but I would definitely be contacted the local TU rep or an experienced senior member of staff who could accompany and assist me with proceedings.

If they're looking to dismiss you need to understand the standard you will be held to here: your guilt or innocence is pretty much secondary. What matters is if a reasonable person following a reasonable investigation came to a reasonable conclusion that you were guilty. If that is the case then an ET will let the dismissal stand.

You therefore have to make sure that your employer conducts a reasonable investigation and comes to a reasonable conclusion. This involves carrying out a fact finding interview to give YOU the chance to tell your side of the story. This will also mean giving an account of events that takes into account the version of events given by witnesses.

Your employer would be unreasonable to not explain what has been said and why they believe your suspension is necessary, as well as explaining why they believe your version of events is not a reasonable account.

Without more details I can't say much else but please please remember innocence is no defense. This is not innocent until proven guilty beyond all reasonable doubt.

This is, all other things being even do I think you're guilty? If the investigating manager believes you to be guilty after a reasonable investigation and can give a reasonable explanation as to why they think you are guilty then you can be summarily dismissed.

You need to know this not to panic but to make you aware of what's happening, and if what you must now do. Get assistance NOW. A good rep or experienced member of staff who knows company policy is what you need. ACAS is helpful too.

What is the gross charge?

Why did you ask your co-workers for statements knowing they had already made them to personnel?
How would a second statement done for you be any different from what they had previously recorded?

Hi Guys,

I have not seen their statements, I called ACAS who said I should gather my own statements, I did this prior to seeing their statements, I did not ask them to change their statements, I merely asked for my own supporting statements, as I believed I was allowed to do? how can I formulate my defence If I am not allowed to ask the very people who were there?

But did you know they had already provided statements? If so did you tell this to the ACAS advisor (who can be hit and miss unfortunately IME)

Did you ask your colleagues how its worded in your OP ie. "can you do me a statement saying you feel its not my fault".

What stage is it up to now? Do you have a date for your disciplinary? Have you now been given copies of all supporting evidence?

Hi

I did ask for them to say if they felt it was my fault :( I am screwed aren't I, I did in no way mean for them to change their original statements, I was just following advice given, so I ask them to just give me a reference as such saying they did not feel it was my fault :(

I think you need to be careful
The acas lot can only advise based on what you told them. If you did mention previous statements that is why they told you to collect them
You cannot ask them to resubmit a statement with 'it isn't her fault' inserted now
Try and relax but I would suggest you start looking for another job and resign
Unless there is clear clear evidence it wasn't your fault
But you haven't handled it well if it isn't your fault as you are now acting rather guilty
Sorry you are having a bad time

You need to get a copy of your employers disciplinary procedure and read it carefully. Most don't allow employees who are subject to an investigation obtaining statements but would expect you to suggest the names of witnesses to the incident for an appropriate manager to interview them for this purpose.

Giving ACAS the benefit of the doubt they probably meant for you to prepare your own statement from your perspective of what happened as it's very unusual for an employee to investigate an accident/ incident themselves.

Did you tell the ACAS advisor that the employees had already provided statements to HR as part of the investigation? I would be surprised if they advised you to approach them again if so. If you believe their statements to be untrue then that's for discussion during the disciplinary.

If you can prove that you asked for their statements before seeing the ones they provided to HR you could argue (on the statement point) that you were just gathering your own evidence as per policy and ACAS advice but unfortunately it doesn't look good that you tried to coerce them into stating it wasnt your fault, especially as at it looks like at least one of them wasnt comfortable with the situation they were placed in.

FWIW I wouldnt consider the statement thing an act of GM on its own IF the above scenario is true (so bad advice), unfortunately because it does appear that you have tried to disrupt the process and it involves a workplace accident then its a bigger issue.

It sounds like possibly you have the sort of relationship with the colleagues where you thought a "ere mate could you just say it wasnt my fault like we spoke about at the time" but when push comes to shove - the disciplinary - you tend to find that colleagues will 100% not want to look like they are colluding in any way for fear of losing their jobs.

The best you can hope for is concentrating on any other evidence you can provide - you say it was a workplace accident - was it your responsibility to ensure adequate PPE, training etc etc? Did the employee have this? Was it a lack of training for you that led to it? And so on.

Asking colleagues to write new witness statements (effectively changing their statements to support you) will be seen as tampering with and intimidating witnesses and is gross misconduct.

What was the original charge? And do the original statements implicate you?

To be honest if I was the investigating manager I would have thought a minor investigation would explain this away. Asking people to give a statement that says did you feel it was my fault is borderline. Keep in mind that a reasonable investigation MUST include giving you the chance to present your version of events (previous ETs have held this up repeatedly).

What is more concerning is your employers propensity to suspend you immediately without discussing the matter with you, and would indicate that they're inclined against you in the first case. Which is why it's now absolutely vital that you get good advice from someone who is intimately familiar with the policies and procedures of your employer.

If I was in your position I would now be hoping that they screw up in some way in their investigation/disciplinary procedure. Failing to follow through with their own procedures/policies and with ET expectations so you can take them to ET for unfair dismissal. The award for ET is capped at 1 year's salary unless there is some kind of harassment/discrimination going on. Is there any suggestion of any kind that this might be considered action taken on the basis of one of the protected characteristics?

If you can make your employer aware that they might be liable for an uncapped payout for unfair dismissal on the basis of racism/sexism/etc. etc. (look up protected characteristics) they are more likely to chicken out of dismissal and go for a final written warning etc.

There's always the possibility that the gross charge in the first instance isn't found to be substantiated. Do you have a GOOD explanation for the facts that they've presented to you (including your colleagues statements)? Too much depends on the circumstances of the first gross charge.

Finally, how do you think your employer regards you? Are you well liked by your managers? Are you considered a piss-take or a hard worker? Are you flexible and regarded as helpful? These things will make a big difference in how the investigation is oriented.

how can I formulate my defence If I am not allowed to ask the very people who were there

I have sympathy with this. Work disciplinary processes usually stop you talking to colleagues - who of course might be your witnesses! But there's nothing to stop the manager concerned talking to all and sundry. It puts you between a rock and a hard place.

But as others have said, you can't speak to colleagues asking them for statements. But how were you supposed to know that? Is that set out in the policy - it seems common sense to many of us but it is not obvious if you have not worked in HR law or a similar field. Acas obviously confused you totally. I would write it all out carefully and provide it to the investigating manager.

Has your employer explained the process to you? Have you had any assistance from a colleague - you are allowed to have a colleague with you if you can't have say a union rep because you are not in a union.

And remember you can appeal any decision so the first outcome is not the final one.

Just to add you might not be entitled to see copies of statements- as someone who was recently asked for a statement as part of a whistleblowing case it was made clear to me within my (national) organisation that if I went ahead I had the right for my statement to be made anonymous so that I couldn't be identified as the person providing the statement and that the individual involved would never see a copy of any statement I wrote. Unfortunately whilst I completely get that you've acted in an understandable way it does read as you asking people to write statements to support you (leading) when you were already aware that they'd given statements?

The gross misconduct refers to you asking about the statements (which you knew had been done because you did one too) though, not the original incident I think?

You seem to be assuming that the statements will not support your version of events, otherwise there would be no need to 'formulate' a defence.