advice on evidence at disciplinaries

[nancydrewrocks]

Basically in an investigation can evidence of a previous warning for a behaviour be used to suggest that you have a propensity to that behaviour and therefore it is more likely that you committed the offence?

A friends son is facing a disciplinary hearing in relation to an alleged theft (he denies it - all very complicated lots of ill feeling within organisation and certainly no real evidence as far as I am aware, inclined to believe him FWIW)

However he has previously had a written warning regarding the same issue (he denies the offence although he was found 'guilty' and says that this is part of a plan to hound him out)

There has apparently been an independent investigation and the investigator was told that he had previously been diciplined for the same offence. Some of this process/info is documented and it appears that the investigator is saying there is no real evidence for theft 2, but since you were found guilty of theft 1 it'smore likely that you committed theft 2.

Seems very wrong to me - any thoughts?

My understanding is that if a previous disciplinary is "still on file" then it can be considered in deciding what action to take after the current disciplinary has been heard.

It should not form part of the investigation. The investigation should focus surely on the issue at hand and should be deliberately told of any previous invesigation. Particularly if they are supposed to be independent.

Now, I don't know this company's policies, but theft is almost exclusively considered to be gross misconduct and if an employee is found to have committed gross misconduct then the only action (unless there are extreme migating circumstances) is dismissal. I am confused as to why if he's supposed to have been found to have thieved before they are still employing him?

Is he in a union?

I suggest he speaks to Acas and CAB.

sorry should not be deliberately told

Just thanks I thought that must be the case - my background is criminal law and so this rang massive alarm bells with me (pre cons relevant to sentence but not to guilt)

He is not in a union he is only 18 and this is part time work. The whole thing is dodgy as you like (the theft basically relates to a number of office pens - I mean WTF?!) and as far as I can see disciplining him has been a total fudge.

Frankly my advice to him has been to walk away very quickly and don't look back.

Office pens?! Heavens I and everyone I've ever worked with would be going down! Are these expensive pens?

The fact it is part-time work makes no difference. Same employment rights as any other worker. How long has he been there?

If it's less than a year they can basically terminate him without any reason so all of this would be quite unnecessary and could potentially be perceived as bullying and harrassment.

Has he been suspended while the investigation is being carried out?

Is it alleged as in it's not clear whether there has been a theft, or alleged as in they can't prove who did it?

If he was found 'guilty' of theft previously it is very surprising he still works there tbh, as JAMM says, theft would usually be gross misconduct meaning immediate dismissal.

A previous disciplinary warning still on the file can and indeed should be taken into account when deciding on what level or warning or other sanction (including dismissal) to impose for a further offence.

Just because someone has done something before doesn't obviously indicate that they have done it again so it shouldn't really be used as evidence that they have as such.

However your friend's son needs to be aware of the following:

-It is not necessary to 'prove' an offence 'beyond reasonable doubt' if you want to discipline/dismiss someone. The burden of proof isn't nearly as strong as for a criminal charge. All that the employer needs to demonstrate is a reasonable belief in terms of a balance of probability that the person was 'guilty'.

-It is perfectly possible to dismiss more than one person for the offence if the offence is this serious and it's not actually possible to prove conclusively which of a small number of employees is responsible.

Hhhm, doesn't necessarily sound like best practice (leaving aside the fact that it's pens ), but bear in mind that the same rules do not apply to disciplinaries and criminal trials. I don't think it would be automatically unfair to use this as evidence, but I do think it is probably unfair and disproportionate in the circumstances.

On the other hand, imagine someone who had had 3 warnings about smoking outside the front door. They are caught outside the front door smelling of smoke and with a butt on the floor. They swear it wasn't them and is unfortunate timing. They weren't smoking in the prohibited location. I can see that it would be reasonable to use the previous warnings as part of considering the disciplinary, as without it you wouldn't get the full picture.

I think in this situation the investigator should investigate into this specific allegation only, and present a report accordingly. The person then making a decision about what (if any) action to take should then have access to both the report into this incident and previous disciplinary warnings and take it all into account.

Thanks everyone.

I think the boy is going to leave anyway - the whole situation is ridiculous basically it appears that there is some widespread cheating in relation to commissions going on, my friend's son spoke to his manager's manager about it as they are a friend of his mums (follow?)

Manager started a casual sort of investigation into it and then has been away (desperately needed somewhere else in country) Line manager who was implicated now harassing friend's son and has concocted stationary theft situation. Big boss clearly doesn't believe it but can't actually be arsed to intervene so has allowed him to carry on working but without anything being done.

Suffice to say this is the most unprofessional, incestuous company known to man and my friend's son would be well out of it!