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Misuse of Spouse travel Pass

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HSP 2

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Never resign before a hearing, see how the body langue is going, but may be have the letter in you pocket (as an old rep I don't think that resignation is option 1).

good luck
Hanson.
 
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Haywain

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I also think there was some poor advice telling the OP not to seek independent legal advice and persist with his union.
When it comes to representation in a disciplinary hearing only one of those is an option.
 

Titfield

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When it comes to representation in a disciplinary hearing only one of those is an option.

Yes that is true however taking advice from a lawyer would seem to me to have been a sensible course of action given that the OP is, by their own admission, unhappy with the advice given by the Union Rep. The OP is free to take advice from whomever he chooses and to act upon it as he feels appropriate.

A lawyer may have been able to give a broader view of the responsibilities of an individual in relation to the activities of a third party in the case the wife of the OP.
 

LCC106

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It sounds as though @357 has tried to help you in advance of what we thought was today’s meeting. I’m glad to hear that you wish to continue with the meeting tomorrow. Please also note (if @357 hasn’t already highlighted it) the suggestion in post 159 to take along the email to RSTL demonstrating that you have requested they don’t renew your spouse’s pass.
 

najaB

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A resignation cannot be refused, we all have the right to end an employment contract. An employer only has a cause of action if you don't work out any notice period in the contract.
Depending on what is in the letter of resignation, it can be. If it contains any conditions (e.g. last working day, pay in lieu of notice, etc.) the employer can reject those terms. An employer cannot reject an unconditional letter of resignation.
I also think there was some poor advice telling the OP not to seek independent legal advice and persist with his union. The union and it's reps have their own interests and that of their other members not that just of one employee.
I could be wrong, but the OP wouldn't be able to take a solicitor into the hearing with them so I don't know what value it would be to engage their services at this point.
 

Titfield

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Whilst a lawyer can not be present at the hearing, he / she may have been able to give the OP 1) a written statement to read out at the hearing and then hand in - this could ensure that any statement of apology / contrition / remorse and offer of repayment is contained within the record of the meeting. This may help in either the first decision or certainly if the decision goes to appeal giving the person undertaking the second hearing factual evidence. 2) guidance on anything they must include or must not say in the hearing.

Some time has elapsed since the original post was made by the OP and as NajaB implied it is rather late in the day. But I come back to the point made previously about seeking an adjournment to seek legal advice.
 

Haywain

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Whilst a lawyer can not be present at the hearing, he / she may have been able to give the OP 1) a written statement to read out at the hearing and then hand in - this could ensure that any statement of apology / contrition / remorse and offer of repayment is contained within the record of the meeting. This may help in either the first decision or certainly if the decision goes to appeal giving the person undertaking the second hearing factual evidence. 2) guidance on anything they must include or must not say in the hearing.
I am sure all that could be right but I reiterate that the OP would be, at the very least, foolish to go into a disciplinary hearing - especially one that could lead to dismissal - without being accompanied by someone with experience and training in the procedures concerned.
 

Tazi Hupefi

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You should almost always be able to take an external lawyer into a disciplinary meeting - in the capacity of a witness. It is normal procedure to take a workplace colleague or union rep into such a meeting, but it would be unwise for any employer to refuse to admit a qualified lawyer acting purely as a witness as an employment tribunal is likely to take a severe view. Obviously a witness is just that though, and may quietly take notes, but not generally comment or offer advice. It is incredibly rare for that to occur, not least because of cost, but is a position I occasionally advocate, because it can most definitely cause an employer to "reconsider" their position, especially if they think there's an increased potential for a claim afterwards.

Independent legal advice should always be sought, and most firms will offer a short consultation free of charge, so why not give it a go anyway? Your union is not independent, nor is your employer. Both will act in a manner that suits their own cause and agenda.

For a free 20-30 min consultation with an employment lawyer (by telephone or video conference), 8 pages of this forum thread could have been avoided!
 

Hanson

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You should almost always be able to take an external lawyer into a disciplinary meeting - in the capacity of a witness. It is normal procedure to take a workplace colleague or union rep into such a meeting, but it would be unwise for any employer to refuse to admit a qualified lawyer acting purely as a witness as an employment tribunal is likely to take a severe view. Obviously a witness is just that though, and may quietly take notes, but not generally comment or offer advice. It is incredibly rare for that to occur, not least because of cost, but is a position I occasionally advocate, because it can most definitely cause an employer to "reconsider" their position, especially if they think there's an increased potential for a claim afterwards.

Independent legal advice should always be sought, and most firms will offer a short consultation free of charge, so why not give it a go anyway? Your union is not independent, nor is your employer. Both will act in a manner that suits their own cause and agenda.

For a free 20-30 min consultation with an employment lawyer (by telephone or video conference), 8 pages of this forum thread could have been avoided!
I have rang around for solicitors advice although last week but they not available to see me till mid this week, and some said they will get back but didn’t .
really appreciate all your advice on here guys, but I listened to every single advice on here...including facing the hearing tomorrow

The spouse actually drops off my little one at the grand parents out for childcare, care for them for few hours because been driving to work by car by her sister she does thesame on her way back
Would this still be referred to as going to and from work?
Even though she stops by for about an hour or 2 before heading to work...
Just thinking as this only just occur to me, I could use this as a bases for argument... but not sure

I have rang around for solicitors advice although last week but they not available to see me till mid this week, and some said they will get back but didn’t .
really appreciate all your advice on here guys, but I listened to every single advice on here...including facing the hearing tomorrow

The spouse actually drops off my little one at the grand parents out for childcare, care for them for few hours because been driving to work by car by her sister she does thesame on her way back
Would this still be referred to as going to and from work?
Even though she stops by for about an hour or 2 before heading to work...
Just thinking as this only just occur to me, I could use this as a bases for argument... but not sure
But I’m thinking how can I prove this?
I don’t have photos or videos and don’t even think that would justify anything... I intend to mention this as well
 
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Titfield

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Not clear to me what the child care issue is in relation to your hearing?
 

357

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I think at this late stage, after your wife has admitted to the revenue team in her statement that she was commuting - that if you argue that she wasn't commuting, it will simply result in them finding against you and dismissing you

I know it's a lot of money, but the only way I can see any resolution and any possibility of you keeping your job is if you offer to repay it tomorrow.
 

WesternLancer

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I think at this late stage, after your wife has admitted to the revenue team in her statement that she was commuting - that if you argue that she wasn't commuting, it will simply result in them finding against you and dismissing you

I know it's a lot of money, but the only way I can see any resolution and any possibility of you keeping your job is if you offer to repay it tomorrow.
I agree with this FWIW. It may be a lot of money but it's a lot less money than losing your job (and still probably being pursued for the money, or your wife being pursued for it).
 

ukkid

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When it comes to representation in a disciplinary hearing only one of those is an option.
Again, I never claimed he should take a solicitor to a disciplinary proceeding.

Taking legal advice and taking a Union rep to a disciplinary hearing are not mutually exclusive options. Taking advice from multiple sources is not mutually exclusive either, and is in fact what the OP did by coming onto this board.

He should have taken legal advice much earlier. Its still an option he should pursue.

Not all clauses and contracts have fair or reasonable terms that are enforceable. I would think what is and isn't reasonable or what liability he really faces would be better assessed by an employment solicitor..
 

najaB

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I know it's a lot of money, but the only way I can see any resolution and any possibility of you keeping your job is if you offer to repay it tomorrow.
@Hanson - that doesn't mean you have to have a cheque ready to hand over, but if you can show that you are making arrangements to repay the money it will go a long way.
 

AlterEgo

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I feel bad and I think it’s really worth the fight!
Guy you might misinterpret what I meant I only just asked for my union rep to ask if the manager would accept my resignation and he came back and said yes.

I have now told them I will go ahead with the hearing tomorrow
I have been on the phone with my rep all this while and he’s just been unsupportive and only asking the I provide proof that I have done all I could to stop this misuse which he knows I haven’t got, what proof could I provide when I was in a bad state in a Rocky marriage and infact I had to since to have detected any misuse was made on the pass
You have been looking at this through the wrong lens.

Given the marriage is effectively one where you are totally estranged, and, it seems, you have gone to significant lengths to attempt to convince your employer of this (not talking, not even being in the same house very often, etc etc) - why did your spouse have the pass anyway? It is up to you to take reasonable steps to ensure there is no misuse of the pass.

You have perfectly outlined a case where, if it was not possible through having a civil relationship with your wife, to take any reasonable steps to ensure compliance with the TnCs, you ought to have spoken to your employer/ATOC to withdraw the pass from their end.

Ultimately, you are in a big pickle. I'm sympathetic, because dealing with that situation is not easy at all, and you do not have to be a bad person to have fallen foul of the rules. I am one of the few people in the thread, however, who think your defence against gross misconduct charges is very weak (especially as there is an £8,000 fraud and loss to the railway on the end of it too).

This notwithstanding, you should not resign! Dismissal is very likely but not certain, and other posters have outlined how you might have an outside chance of keeping your job. Personally I am surprised the railway is not filing an investigation against your wife, who is the real villain of the piece.
 

najaB

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Ultimately, you are in a big pickle. I'm sympathetic, because dealing with that situation is not easy at all, and you do not have to be a bad person to have fallen foul of the rules. I am one of the few people in the thread, however, who think your defence against gross misconduct charges is very weak (especially as there is an £8,000 fraud and loss to the railway on the end of it too).
I agree that there's little defence against a charge of gross misconduct, the battle is going to be convincing management that there was no malign intent - the OP, having confirmed that his wife started buying tickets rather than using the pass, assumed that she continued to do so and was unaware than she had started using the pass again.
 

AlterEgo

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I agree that there's little defence against a charge of gross misconduct, the battle is going to be convincing management that there was no malign intent - the OP, having confirmed that his wife started buying tickets rather than using the pass, assumed that she continued to do so and was unaware than she had started using the pass again.
The dilemma here is if the OP doubles down on “no really, I swear I told my wife about the terms very clearly” etc - it just switches the focus onto her. Only the OP will be able to resolve that dilemma himself.
 

najaB

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The dilemma here is if the OP doubles down on “no really, I swear I told my wife about the terms very clearly” etc - it just switches the focus onto her. Only the OP will be able to resolve that dilemma himself.
He doesn't need to push her any further under the bus than she already is. "I gave her the pass when the relationship was still functional. When the relationship broke down, she started buying her own tickets. It never occurred to me that she started using the pass again." He's not stating anything more than he already has, but it explains why he didn't ask for the pass to be removed.
 

Hanson

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The meeting was a fierce fight which I am glad i did fight till the end but unfortunately it didn’t go in my favour. Unfortunately dismissal was the outcome because the manager points were all still nailing me on what I should have done and that I haven’t done enough.
I even went ahead and showed WhatsApp messages of how clearly communication broke down and explained how in this modern age where there’s a thin line in monitoring a spouse action such has how she’s travel in this situation and been controlling, but all I keep getting was it was my responsibility and how I monitor it is up to me, the fact they acting on is the policy that I have falling short which is to ensure partner don’t misuse the pass.
She further quoted signing the policy meant I agreed with it and they can’t decide how it’s enforced which also include whatever action they decide to take as what happened had contradicted the policy and therefore the result they deem fit for it is dismissal.
She further stated my Rocky marriage even with proof wasn’t enough and wasn’t an excuse for the pass misuse as I could have taken it then, I then stated but I had not seen any reason to take it off her as there were no suspicious of misuse and also my current state then, the pass was the last thing on my mind, the response I got was well the policy states it was my responsibility.
Also I made sure I stated my understanding signing the policy was ensuring I state to the spouse it can’t be use to work which I did and as an adult her actions are solely her accountability and I have acted responsibly by stating the conditions to her, what way has the company stated as a staff I should have monitored the use by? She’s then said to me the company don’t have to provide how an employee can monitor the use, but I said if the company can now monitor the use since the pass changed to a card it is only right for staff to have a system to to log in to to check this passes as well!
but she said NO, it’s the company rule and they decide if they want to do that or not...
I was just stunned by the answers I was getting
Had no modern reasoning behind it and would clearly stand up to judicial scrutiny
However, the policy were all I was been accused of breaking even though I had done the reasonable thing which was stating the conditions.
I further offered to pay back the money to remedy the situation, just to again couple with my good record at work and reputable characters as an employee, what I got back is that doing that isn’t changing the fact that policies were broken however doing that could be taken to helping the spouse from further actions against her but for me my case was that I should have done more than I said I did in stoping the misuse
Felt like even with my valid point and advice from wonderful guys on here who have given outstanding support and advice the management just wanted to make a difficult case against me and by the way I am no a train driver and my position isn’t expensive to replace again hence the difficult and harsh decisions they have taken against me

Unless it went spectacularly badly I doubt the OP would be able to give a useful update. I'd expect it will be a couple days at least before they get an outcome.
No! Got an outcome same day, however it becomes formal in writing in couple of days
 

MotCO

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Sorry to hear the outcome, and thanks for providing an update.

The next thing to do is wait for the written confirmation and see if there are any grounds to appeal. It seems as though you made some good points in the hearing, but they just did not want to know. It may well be time to get some legal advice.

Was anything said about pursuing your wife or repaying the monies?
 

Hanson

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Really can’t thank the guys here enough, you all stood by me all through... I bet you would fight for me personally if you all can.

Didn’t get anything about the money however i have started making extra move just to do the best I can to still pay the money back in my name, this way I atleast have records of how I really intended and offer to pay back base on my clean and reputable history with the company to remedy the actions which the company felt I haven’t done enough to avoid
 

cadder toad

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Hi Hanson - I'm really sorry to hear that outcome. Thank you for the detailed update. I would need a few days before I could do that. It seems very unjust to me. I'd be thinking about appealling. Will you get paid notice?

I know you're weren't happy with your union rep but if they were at the hearing it would be useful to know what they said to you after the hearing.
 

najaB

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No! Got an outcome same day, however it becomes formal in writing in couple of days
Hmm... I don't know about your company's policy but in most organisations I've been involved with they never gave a decision on the day. It was always taken away to be reviewed by HR and a director or above to make sure that all the I and T's had been dotted and crossed.

Sorry to hear that it didn't go your way but it's still, in my mind at least, better to know that you did everything you could than be left with a lingering "what if".

It may well be time to get some legal advice.
I second this suggestion.
 

LCC106

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Hmm... I don't know about your company's policy but in most organisations I've been involved with they never gave a decision on the day. It was always taken away to be reviewed by HR and a director or above to make sure that all the I and T's had been dotted and crossed.

Sorry to hear that it didn't go your way but it's still, in my mind at least, better to know that you did everything you could than be left with a lingering "what if".


I second this suggestion.
They only need to have adjourned for sufficient time to make a decision based on all the evidence presented beforehand and any evidence or further info presented at the meeting. It could feasibly take less than a day. Only if there was no adjournment could the company be considered to have made up their minds beforehand. This would potentially be unfair but I am not a lawyer.
 

najaB

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They only need to have adjourned for sufficient time to make a decision based on all the evidence presented beforehand and any evidence or further info presented at the meeting. It could feasibly take less than a day.
I wasn't suggesting taking legal advice purely on the speed of the decision, but as general advice to see if the company has followed employment law to the required standard.

As an aside, the reason why in the companies I've worked in that there was at least a day or two's delay was because the decision was always reviewed by someone who hadn't been present in the meeting.
 

dave4jackie

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Don’t forget when you appeal it will be a different manager who will take it, don’t know what job you do but you could get demoted if you are lucky
 

Hanson

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From my understanding based on the investigation which has been checked already by HR or higher ups not sure who, the recommendations and charges are there already therefore I had to provide facts to over turn them with hard solid proofs which I don’t have much; as in this circumstances was very difficult to provide, all I just kept hearing was-it was your responsibility and other similar things along that lines then with the cost incurred!, which when mentioned I then offered to pay it all back since I am been done for failed responsibility but was not enough...
I was waiting for about few hours + then got the outcome of the meeting

rep said to me hard and new evidences were what I needed as my circumstances weren’t enough to justify the misuse.
Email I sent to stop the pass, the company not been able to provide acknowledge slip hat I signed and something similar would have been able to get a lesser severe outcome... just felt the policies were directly targeted at disregarding the circumstances surrounding the case
 

WesternLancer

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From my understanding based on the investigation which has been checked already by HR or higher ups not sure who, the recommendations and charges are there already therefore I had to provide facts to over turn them with hard solid proofs which I don’t have much; as in this circumstances was very difficult to provide, all I just kept hearing was-it was your responsibility and other similar things along that lines then with the cost incurred!, which when mentioned I then offered to pay it all back since I am been done for failed responsibility but was not enough...
I was waiting for about few hours + then got the outcome of the meeting

rep said to me hard and new evidences were what I needed as my circumstances weren’t enough to justify the misuse.
Email I sent to stop the pass, the company not been able to provide acknowledge slip hat I signed and something similar would have been able to get a lesser severe outcome... just felt the policies were directly targeted at disregarding the circumstances surrounding the case
Sorry to hear all this Hanson - had been thinking of you today as it would not have been a nice ordeal. Well done for what you did.

I guess option is now to ask Union for legal advice on this ref dismissal ruling and discussion with Union solicitor about it (most likely that would be Thompsons) if union prepared to request that of their retained legal firm. Maybe worth ringing Thompsons direct about it to start with given your rep has not sounded too sympathetic.

Failing that you could now go to any other solicitor local to you who covers employment law to see if they reckon you have a case that they would take up.

But for next day or two probably worth seeing what advice others give on here to weight up options for next steps.

Once again very sorry to hear this.
 
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