[Help] Employment disciplinary advice.

[Goldstone1976]

Thank you very much.
Agree with everything you say really.

In terms of resigning to save the hr cost, this has been ongoing for over a month now as they keep delaying it. He hasn’t delayed it once.

I have advised him to resign to save face, but they believe he’s so deep into this whole
Mess now he may as well see it out he reckons.

end of the day, it was bloody stupid what he done so he can have no complaints about the inevitable outcome imo

You know, there’s just the possibility of a chink of light in what you say. A month is an awfully long time for an HR team to make a decision on a case of what appears to be (based on what you’ve inferred) possible gross misconduct.

The company won’t be happy with the customer either. Using the video to try to get a discount is pretty bloody low.

It’s just possible that they’d prefer to support their employee (even though he’s done bad) than give in to the customer, particularly if they value him (other than this episode). Not likely, but just possible - a month really is a long time...

Edit: ...depending on whether he’s being paid while on suspension. Is he?

 

[Bowers-sfc]

You know, there’s just the possibility of a chink of light in what you say. A month is an awfully long time for an HR team to make a decision on a case of what appears to be (based on what you’ve inferred) possible gross misconduct.

The company won’t be happy with the customer either. Using the video to try to get a discount is pretty bloody low.

It’s just possible that they’d prefer to support their employee (even though he’s done bad) than give in to the customer, particularly if they value him (other than this episode). Not likely, but just possible - a month really is a long time...

Edit: ...depending on whether he’s being paid while on suspension. Is he?

The only reason I’m so invested in helping is because it’s dragged on. For the first couple
Of weeks I said he
Had no chance...
The longer this goes on, the more I think there’s something they can’t quite nail... be that the footage and it’s use of it or another reason, I come from supermarket retail as a manager, and if disciplinary meetings drag on, it normally means it gets thrown out as don’t have enough on them etc.

He is valued, and was/is on there programme
For progression. Very good at job and highly thought of I understand. But yes, it is gross misconduct for sure.

He is suspended on full basic pay...

 

[Goldstone1976]

The only reason I’m so invested in helping is because it’s dragged on. For the first couple
Of weeks I said he
Had no chance...
The longer this goes on, the more I think there’s something they can’t quite nail... be that the footage and it’s use of it or another reason, I come from supermarket retail as a manager, and if disciplinary meetings drag on, it normally means it gets thrown out as don’t have enough on them etc.

He is valued, and was/is on there programme
For progression. Very good at job and highly thought of I understand. But yes, it is gross misconduct for sure.

He is suspended on full basic pay...

Hmm...

... then maybe there is a chink of light for him. Don’t focus on the legality of them using the video evidence. All they’d need to do (and perhaps they already have?) is ask ‘Did you do X?”. If he says yes, the video becomes redundant. If he says ‘no’, they know he’s a liar as well as the original issue and will find a way to Get him out come hell or high water.

Contrition, remorse, acknowledgement of the hassle he’s causing them, expressing loyalty to the company, etc is possibly the best bet.

Still - very likely he’s a goner...

 

[lawros left foot]

I don’t know enough about either employment law or the privacy law to comment, but, if the television companies can have programmes like Rogue Trader etc, then the use of the video in this case must be immaterial.

 

[yxee]

Probably the manager or someone is fighting for him and it's gone through some kind of internal arbitration process. Might still be a good idea to offer resignation for the reference, as dismissal is the worst outcome and still possible, but through the right channel (eg who is his ally in this, the manager?) Might be worth a frank conversation to reduce the probability of that outcome as much as possible. That might also work in his favour and make them more likely to keep him. Not sure he should say this to HR though as it may give them an easy way out.

 

[schmunk]

How have we got to 25 posts without anyone referring to this as the OP's "friend"?

Anyway, your "friend" should take Goldstone1976's advice - admit, explain, apologise, hope for the best, prepare for the worst.

 

[Justice]

Just tell us what he did man? We have no idea who he is so what does it matter? As you say it’s out in the open now.

 

[Fred Oliver - Legend]

Come on, what did your ‘friend’ take?

 

[jessiejames]

How long an investigation needs to take
While an investigation should be completed as quickly as possible, it always needs to be thorough and fair.

Some investigations might take longer depending on the case and how many people need to give information.

For example, a simple case might only take a day to gather enough information, whereas a more complicated case could take several weeks.

Your workplace might have timescales for investigations written in their policy. Otherwise, the employer or person investigating should set a reasonable timescale and tell the employee.

If it’s found that more time is needed during the investigation, this should be allowed for. Any delays should be explained to anyone involved and written in the investigation report.
From ACAS.

https://www.acas.org.uk/disciplinary-procedure-step-by-step

Your friend might want to read through the link above.

 

[Justice]

Come on, what did your ‘friend’ take?

The clients wife

 

[WilburySeagull]

Commenting as a fetired employment law adviser if your friend has in effect admitted gross misconduct I am surprised the employer is taking so long to issue a decision. In general gross misconduct would allow the employer to dismiss without notice once the disciplimary process was complete


If an admission has been made the video is irrelevant now. The best that can be done is pleading mitigation which might involve being a good employee etc.

I dont think resignation would help. He/she will still face the "why did you leave the last job question" and the former employer is required to give a truthful reference if asked.

 

[Goldstone1976]

I dont think resignation would help. He/she will still face the "why did you leave the last job question" and the former employer is required to give a truthful reference if asked.

They are certainly required to tell the truth, but they are not compelled to tell the whole truth. If he resigned, and there was still some residual goodwill (which there may very well not be), they could say, if they chose, “he resigned”. They are not compelled to add “...knowing that if he didn’t, we’d have fired him”.

If he is dismissed, then they would say “he was dismissed”.

So, resigning could help him, depending on the precise circumstances and his employers’ willingness to help him get another job.

 

[drew]

Seems to me that, from the employers point of view, it would be in their interest to sack the guy and not give a discount. If they don't, then what's to stop the customer using the same tactic in the future. He can keep coming back for discounts and if at some point they say enough is enough, he can put the evidence on twitter or whatever and their reputation takes a big hit, especially if they didn't sack him when they had the chance and effectively covered it up. Damage limitations.

As others have said, they have no way of knowing whether he has done something similar previously or since!

 

[Braggfan]

I think it's a tricky one. GDPR wouldn't cover the customer taking the footage. BUT it does cover the employer, and I would try and argue that the company can't use the video footage as it’s your friend’s "personal data".

I'm assuming his employers are looking to dismiss him? If it were me, I would write to the employer and say that the video constitutes a breach of GDPR, that you want them to remove it from his file and stop processing it right away. Keep copies of all letters/emails you send and if you send the request as a letter, send it recorded delivery so that there is a record it was received. If they don't reply, send a follow-up email/letter and keep copies. Failure to acknowledge you could potentially be used as evidence to support your argument later on that they failed to comply with their legal requirements. If a company doesn't reply, it looks like they are being evasive and looks a lot worse for them.

If his employers then use the video as "evidence" to dismiss him, he could complain to the Information Commissioners Office (ICO) that he requested in writing that they stop processing the information and remove it from his file. And that they clearly didn't comply because it was used as evidence to dismiss him. In general, the ICO looks to protect individuals data rights, so if a company doesn't comply with requests or ignores them, it generally works against the company. However, if a company has a savvy data protection officer, they could probably put an argument together to justify the actions. Their defence might also be influenced by whether your friend's behaviour was unprofessional or illegal.

I think it would be 50/50, in my opinion. If the ICO agreed with him, then it would have been a breach of GDPR to use the video. The company will get in trouble for that on its own. If he didn't get his job back, he would be perfectly placed to sue for unfair dismissal, because there is a ruling from a regulatory body saying that the evidence used to dismiss him was illegal.

 

[cheshunt seagull]

I have done a number of investigations of potential misconduct over the years and looking at what you have shared, I would have a number of questions in this case.

- Why meet at an agreed location and not a company site? It seems a very unusual way of resolving a situation.
- Did they agree the action with line management?
- What is company policy on managing complaints?

If they have broken any policy on handling complaints but can convince the organisation that they were acting with the best motives they could get off with a warning. If the organisation concludes were trying to hide something from the organisation then that would be gross misconduct which would probably lead to dismissal.

The time that it has taken for action to be taken might act in their favour and cast doubt as to the motives of the customer. If I was them, when it came to any kind of hearing I would admit that I applied poor judgement in trying to resolve this is outside the organisation’s complaints policy but was acting with the best intentions and was unlucky to have come across a customer who appears to have an agenda. If the video evidence supports this argument they should have no problem with it being used, if not, they could challenge it’s legitimacy.

 

[Da Man Clay]

https://www.lexology.com/library/detail.aspx?g=b15f8774-a0e5-4e1a-9846-87edeaba0b56

I’d tend to say he’s a bit stuffed reading this. If he’s stolen doubly so.

 

[NooBHA]

Your mate is banged to rights.

Take the video of the meeting out if the Equation. It has no bearing on your friend's Dismissal. The fact that he did any subsequent adjustment to his original work does.

By doing this without their knowledge he has misrepresented that employer. Thus this invalidates their Public or Professional Indemnity Insurance. It also invalidates any Warranty on the original work .

Your mate acted beyond his remit as an employee. That's the Legal facts. He doesn't have a leg to stand on. If this secondary work has cost the company a lot of money then I am not surprised they sacked him.

If the amounts involved are not so great then I have a feeling they are using it as an excuse to get shot of him.

Just out of interest ? What sort of
Job prompts someone to film something in a Pub Car Park ? And how could he be filmed at such close quarters that captures clear audio without him realising he was filmed ? Does he work for the Met Police ?

They are the only employer I can think of who could film and record audio without your friend's knowledge.

 

[drew]

I have done a number of investigations of potential misconduct over the years and looking at what you have shared, I would have a number of questions in this case.

- Why meet at an agreed location and not a company site? It seems a very unusual way of resolving a situation.
- Did they agree the action with line management?
- What is company policy on managing complaints?

If they have broken any policy on handling complaints but can convince the organisation that they were acting with the best motives they could get off with a warning. If the organisation concludes were trying to hide something from the organisation then that would be gross misconduct which would probably lead to dismissal.

The time that it has taken for action to be taken might act in their favour and cast doubt as to the motives of the customer. If I was them, when it came to any kind of hearing I would admit that I applied poor judgement in trying to resolve this is outside the organisation’s complaints policy but was acting with the best intentions and was unlucky to have come across a customer who appears to have an agenda. If the video evidence supports this argument they should have no problem with it being used, if not, they could challenge it’s legitimacy.

I think judging by previous posts, the act was something illegal and nothing to do with his actual job. That would also mean the 'resolution' was not agreed by line management.

 

[drew]

As a general observation, it really bothers me that some posts seem on only intent on finding a resolution by way of a technicality. If he did something illegal then he should carry the can for that, end of.

It sort of reflects the current climate, ie not what can I do to reduce the spread of a virus but what can I do to circumvent the rules!!!

 

[Washie]

Your mate is banged to rights.

Take the video of the meeting out if the Equation. It has no bearing on your friend's Dismissal. The fact that he did any subsequent adjustment to his original work does.

By doing this without their knowledge he has misrepresented that employer. Thus this invalidates their Public or Professional Indemnity Insurance. It also invalidates any Warranty on the original work .

Your mate acted beyond his remit as an employee. That's the Legal facts. He doesn't have a leg to stand on. If this secondary work has cost the company a lot of money then I am not surprised they sacked him.

If the amounts involved are not so great then I have a feeling they are using it as an excuse to get shot of him.

Just out of interest ? What sort of
Job prompts someone to film something in a Pub Car Park ? And how could he be filmed at such close quarters that captures clear audio without him realising he was filmed ? Does he work for the Met Police ?

They are the only employer I can think of who could film and record audio without your friend's knowledge.

If it's just audio, could be phone in pocket or even just in hand, as nobody suspects a resting phone.