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Jenny McKenzie
Jenny McKenzie,
Category: UK Employment Law
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Experience:  10 Years of experience in Employment Law and HR
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My friend works as a night porter at a college, and is responsible

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My friend works as a night porter at a college, and is responsible for, among other things, fire safety. In recent years, the fire alarm control panel for a college owned property, located almost a mile away, has been added to his place of work; he is responsible for it. I believe no training, other than my friend working out the system, and explaining it to his colleagues, has been provided. He has worked in this place for 11 years, and has an excellent record, with no demerits recorded against him.
On the first night of his shift recently, at around 3.30 am, a fire alarm sounded, and he checked the monitor for its location, which recorded X. Unfortunately, X is a named location both on the premises where he works, and also the remote one; although there is a label on the outside of the monitor panel, it is a) faded, and b)the glass of the panel reflects the fluorescent light, and so the glass door must be opened in order to read the location of the alarm. He read the location "X" and checked it out on the premises, found no fire, and therefore followed the procedure which involves writing it up, and disabling the alarm at X (On the premises).
A few minutes later, the student who acts as the first responder on the remote site, called him, and the fire brigade, because there was a fire at "X" at the remote site. There was little damage, a microwave with a charred piece of bread. My friend admits he made a mistake, but he was not under the influences of drugs/alcohol, and can also prove that he was awake at the time.
He was suspended with full pay, and went to a disciplinary meeting, hosted by his employer, who promised (in writing) to "think overnight about if/what action would be taken", but, however, sent a letter within a few hours, telling my friend he faces a "gross misconduct" charge, and an immediate dismissal. I have a few queries: one, the employer (and PA) was the only other person present at the investigatory meeting (my friend was not allowed a companion); the employer will also be the only person (with his PA) present at the disciplinary meeting. The employer also tells my friend that he cannot discuss this with any client/employee of the institution, and if he has witnesses, or wishes a colleague to accompany him, that he may not approach them - the employer will do it for them.
Although my friend readily admitted to the mistake, his employer acknowledged his 11 years of exemplary service. My friend explained the mistake, but the employer (who is also Fire Safety Officer) dismissed his concerns; the employer sadly has a record of making poor decisions, and ignoring (written and verbal) advice given to him on subjects which he knows little about, e.g. internet security. My friend's immediate boss (a level below his direct employer) has been asked by my friend for written protocols, repeatedly, which have never materialised; I am sure that my friend has mentioned this to other friends of his, too,who could easily confirm this, but maybe not specifically with regard to Fire Safety.
My concerns are: a) should the employer be allowed to be judge, jury and executioner, when he does, at least, have many subordinates who could have chaired one of the meetings, when it is the employer who seeks dismissal of an individual? b) should the employer be allowed to approach (albeit in writing) the witnesses *for* the employee (these will nearly all be fellow employees, although a few will be students at my friend's college, over 18 only) *and* any colleague he wishes to accompany him, whilst my friend is not allowed to approach *any* employee of college; the employer has daily contact with my friend's colleagues, so potentially could influence them verbally, despite only being allowed to approach them in writing. c) as fire officer, should the employer not implement the recommendations of my friend, who made the mistake, and is well aware he will lose his job over it? If the employer does *not* implement these recommendations, can he also be censured for breaking Health and Safety Laws, as my friend is, because he has refused to alter his system by learning from the mistake which my friend described in detail. Is there any way that a spot check on the fire safety system (which is shaky at best, XXXXX XXXXX in my opinion, and several others') can be forced, especially if the employer refuses to implement my friend's suggestions which will prevent the same mistake being made? And if he ignores these suggestions, is he not guilty of refusing to minimise risk, which should be his priority? d) the reception day staff who cover the local and remote premises are not working alone, and have scheduled breaks. To my knowledge, night staff not only work 12 hour shifts alone, but also have no breaks. It is well documented that night work can result in underperformance short-term, and health problems long term. This will be the case for any night worker, and cannot be removed. Do night staff have any leeway here?
Hello and welcome to Just Answer, has your friend raised any of these concerns formally?
Customer: replied 4 years ago.

He has the disciplinary meeting this week, and will be accompanied by his union rep. He explained how the mistake arose, and made suggestions as to how it could be avoided in future, but thus far, they were ignored. The employer also claimed he would think about it further overnight, but sent the disciplinary action letter a few hours later, seeking gross misconduct, and has clearly made up his mind quickly.

We would like to know whether any of these concerns are valid, especially with regard to the employer's behaviour in arranging the investigations and disciplinary action. Also, whether this is a reasonable case of gross misconduct, rather than, say, serious misconduct and a written warning. For my friend's future employment, would it be better to resign, rather than be sacked?

Hello the first thing that I would say is that even though your friend has been called for a gross misconduct disciplinary it does not mean that he will necessarily be dismissed. The employer should consider evidence at hearing and then decide whether your friend has committed an act of gross misconduct, if the employer finds that he has then he has the option to dismiss the employee. If the employer had not stated in the letter that potentially it could amount to gross misconduct then procedurally there would not be the option to dismiss. This means that your friend should not read too much into that decision.

To answer your questions as listed:

a) If there are other people who could hold a disciplinary and or an appeal if necessary then they should do so. If they do not then your friend can argue that procedurally a dismissal (if this occurs) is unfair.
b) The employer can ask for witnesses to support their allegation. There is nothing to prevent them from doing this. Your friend has the right to be accompanied at a disciplinary hearing by a work colleague or a trade union representative of his choice and should be given the freedom to make this arrangement himself. If he is not then he can argue that any dismissal is procedurally unfair.
c)If your friend raises a health and safety complaint then it should be taken seriously. If he is dismissed for raising the complaint then it would amount to automatic unfair dismissal.
d)Your friend should raise this as a complaint during the process of the disciplinary hearing.

On the basis of what you say if he is dismissed he should appeal against the dismissal. and raise a complaint in the Employment Tribunal.

If you have any further questions please ask. If I have answered your question I would be grateful if you would give my answer a positive rating.

Thank you and I would like to wish your friend all the best.
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