Is There Such A Thing As "double Jeopardy" In Workplace Disciplinary

[EverClean]

I am facing a disciplinary at work this week, and the charge is one that had been brought to the management team's attention some time ago. The manager in question looked at the alleged offence and decided that it wasn't even necessary to speak to me about it. Now, several months later, another team member has brought it to the attention of a new manager, who has decided to discipline me for it.

I know that the original manager deemed it not worthy of further attention from a tip-off and viewed the matter as dealt with and closed.

Is there a legal/procedural issue with this now being dealt with for a 2nd time, with a different outcome (1st time no action, 2nd time disciplinary hearing)

The matter is defacing a company advertising poster, which didn't happen and they have no proof for.

[murraymints]

Are you in a union ? If so I'd involve them for victimisation ....

[EverClean]

I'm not in the Union, but I'm confident enough to take them on myself. I'd just like a bit of background info to rely on. I'm going to speak to ACAS when their helpline reopens, but I'm concerned that they will be too non-committal to guide me one way or another.

[murraymints]

If there is no proof then no case to answer surely....what about hr have you asked them why this is happening?

[EverClean]

It's all being carried out by the new manager, who's been after me since she started. I've got plenty of evidence of victimisation and the investigation has been handled abysmally - asking me about one "misconduct" on a day, then calling me back in the next to say she got that wrong and it was some other "misconduct," giving me timescales of when we would have a solution and not sticking to them, holding investigations 10 minutes before the end of my shift to keep my responses to a minimum (knowing I have children and commitments outside of work) and generally being aggressive and negative throughout the process. I'm sure that there's no case to answer but I want my defence to be watertight. The manager knows that the "charge" has been brought before, but has proceeded to push ahead with this. I'm not quite sure what she's trying to achieve, as I see this ending with me being rightfully cleared, her being disciplined for either not following procedure, victimisation or both and then her having to manage and motivate me. I just want the knowledge to go with my convictions.

[murraymints]

Do you have hr dept ?

[woofgang]

What the law says about company HR rules is basically that it must be fair and that if the company have a policy, then they must adhere to it, although they don't have to have a policy. In this case, your first action should be to get hold of the company policy which cannot be refused to you.
Double jeopardy cannot apply here, even if your company does have such a policy as nothing was done the first time. I'd be interested to know how you know what happened the first time if the manager at the time didn't mention it to you. There is also the question of what that manager documented about the issue. Did they investigate it at all?

[murraymints]

Woofy that's why I was asking about hr dept...how big is this place ?

[EverClean]

It's a major company with hundreds of stores on the High Street. I'm sure they have a policy, so I'll start there. I have been made aware that the issue was looked into first time by an assistant manager who has worked there under both managers. The investigation first time went as far as discussing it with an outside HR consultancy company that my employer uses. It was deemed that too much time had passed and there was too little (or no) evidence to proceed. Obviously more time has now passed and the only evidence put forward is 2 statements from colleagues that state I told them I had defaced the poster. I hadn't had these conversations with these 2 colleagues, I hadn't defaced any poster and I really want to move forward with this.

[EverClean]

There is an HR dept at head office, but ti's more of a skeleton team as all queries go to this 3rd party advisory company.

[murraymints]

Then get policy statement regarding procedures etc...but if the only evidence is hearsay based on what you are supposed to have said and you deny then there really is no case to answer...I would counter claim victimisation against this manager and work colleagues...I would submit a written statement denying all knowledge and certainly would not attend any interview without a third party witness usually union rep or colleague..

[EverClean]

Thanks for your help with this - it has been good to receive advice and support on this matter as it's affecting me quite badly. I'm losing sleep and weight through it. I'd just like to get to the end of it and start looking for new employment with an employer that values me.

[soapnumpty]

Definitely take a colleague you can trust to all meetings. You are allowed to do this. They don't have to speak up for you but could take notes of what was said, as you probably won't be able to remember everything, and this way there can be no-one alleging that this was said, and that was said, as you will have it in black and white.

[lcg]

write down the time/date/people involved in all incidents and kepp doing it as proof of what is happening. then go after your manager for bullying. it's what i am currently doing to mine! good luck x

[EverClean]

Thanks to all for your support. The ridiculous thing is, if my manager had sat me down and said that I wasn't part of their plans then I would have accepted that and looked for something else. As it stands, there's going to have to be a fight to get rid of me, then another after the disciplinary with regards bullying. I'm prepared…

[Peter Pedant]

This should have been in Law and might be worth a double post.

Double jeopardy is usually used for screwing people for one offence in various venues. Drink Driving for doctors goes to court, the GMC and also the employer may have a view....and yes it is clear they can do that.

This one comes in the category of autrefois acquit. Special pleading for rebringing a charge on the same offence. Even that is now lawful for murder charges.

and yes you have a point. the other phrases you need to google or wiki
besides autrefois acquit are 'stare decisis' and 'res judicata'

first of all you need your company's disciplinary policy.
and then read it - NB the company then has to follow it
If there are none - ACAS' site has information on principles of natural justice.


then you need to construct your defence on two parts
i) that this had been considered before and therefore dealt with, and that it would be unfair to go over it again. Also not in the company's interests as it wastes money on non-starters.
2) and second that you didnt do it.

The first manager - let us call him A - did he write that he had called the whole thing off ? Will he do so now ? Hearsay ( = his letter ) may be allowed in company disciplinaries.

Is he still in the firm ? Can you call him as a witness ?
If so, call him

if not - pepper your defence part deux with frequent -"we have covered all this, we know the answer...." when in fact you know mgr B doesnt in fact know. - Oh and dont forget - 'you are bound by decisions made before you'

Good Luck and give em hell.

If you are lucky, the experience for the employer will be such that they go for informal resolution for things like this next time

[woofgang]

PP in the workplace disciplinary one is not bound by decisions made before if those decisions contravene natural justice or the company's disciplinary or other policies or contravene other requirements eg elf and safety OR were taken because certain facts were not known.

[Peter Pedant]

No I understand that - or yes I understand that
nonetheless if the facts are the same or almost and you get decision A
then you can argue that it would be unfair not to decide near A again

The anglo-saxons think that facts a->e should give rise to decision X
then the next week facts a->e should give rise to decision X again.

Clearly the other side then say o but the facts are really different ....

[joko]

deciding not to take the matter any further - and not even speaking to you about it, is not the same as an aquittal or being found innocent

you have not been 'tried' for anything, so not sure how you think double jeopardy can apply

[woofgang]

Either the facts are different or the original judgement was flawed or plain wrong PP.
joko, there isn't the concept of double jeopardy in the workplace disciplinary process. If there is a valid and compelling reason to revisit an issue then its possible to do so although I doubt that defacing a poster would be enough.

While there are laws covering the workplace disciplinary process, it is not of itself a legal process while it remains at an internal level.

[boxtops]

You've had great advice on here, EC. It doesn't matter than the HR function is skeleton and outsourced - they are there to advise you, get in touch with them as well as with ACAS. Also try googling the name of the company and disciplinary policy - many policies of big companies are on-line these days, I know some of ours are. It should also be on the employee section of the company's website or intranet for all employees to see - have you looked there?