Employer deliberately falsified employee’s disciplinary record
Bentley v Supertravel Omnibus Ltd ET/2102862/10
Date added: 7 June 2011
constructive dismissal | disciplinary sanctions | record of disciplinary process
This case concerns an employer accused of deliberately fabricating an employee’s disciplinary record.
Practical tips This decision is a clear example of how the tribunal can determine, on the balance of probabilities, that one witness’s evidence is more credible than another’s. In this case, it seems that the employer forgot to issue the claimant with a final written warning, and then attempted to rectify the situation by fabricating documents at a later date. It is good practice to require an employee to sign and return confirmation of any disciplinary sanction issued against him or her. |
Mr Bentley was employed as a bus driver by Supertravel Omnibus Ltd, which provides bus services in Liverpool. He did not have a particularly good disciplinary record and, in March 2009, was issued with a written warning. In accordance with the company’s disciplinary procedure, he was penalised with the loss of two weeks’ bonus pay.
On 7 August 2009, Mr Bentley attended a second disciplinary hearing, regarding four allegations including performing a dangerous bus manoeuvre with passengers on board. The hearing was held by Mrs Bolderson (director) and her son, Mr Brown (transport manager), whose minutes of the hearing were inadequate. There was a conflict in the evidence regarding how the meeting was concluded. The tribunal found that, although Mrs Bolderson said that the outcome of the hearing could be a final written warning, she made it clear that no decision had been made and that she needed to consider the matter further. Whether or not Mr Bentley was issued with a disciplinary sanction in respect of this hearing was the crucial issue in his tribunal claim.
Mr Bentley was on annual leave for two weeks after the disciplinary hearing, including on 12 August 2009.
On 19 February 2010, Mr Bentley attended a third disciplinary hearing, to address four charges including reporting late for work. The hearing was held by Mr Blair (senior operations manager). During the hearing, Mr Blair made reference to a live final written warning on Mr Bentley’s file, and indicated that this had been issued on 12 August 2009. Mr Bentley immediately stated that he had been issued with a written warning, not a final written warning. Mr Blair adjourned the hearing to seek clarification on the matter.
Mr Brown emailed Mr Blair stating that, with regard to the 7 August 2009 disciplinary hearing, three of the four allegations had been dropped. He said that, at the hearing, it was confirmed to Mr Bentley that he would be issued with a final written warning for the fourth (and most serious) allegation of manoeuvring his bus dangerously with passengers on board. He also said that, on Mr Bentley’s return from holiday, he was given the minutes of the hearing and a letter confirming the final written warning.
The adjourned disciplinary hearing was reconvened on 1 March 2010. Mr Bentley’s union representative, who had been present at the 7 August 2009 hearing, insisted that no final written warning had been issued to Mr Bentley, and that no bonus had been deducted at the time, as required by the company’s disciplinary procedure. Mr Blair referred to written statements by Mrs Bolderson and Mr Brown stating that Mr Bentley had been told that he had been given a final written warning. Mr Brown’s statement said that he had personally given Mr Bentley a letter confirming the sanction.
The hearing was adjourned again but, before Mr Blair made a decision on the outcome, Mr Bentley resigned. He stated that he had no trust in the company as a result of the “fabrication and falsification” of his conduct record by Mrs Bolderson. claimed constructive dismissal.
At the hearing, the company’s evidence included two key documents. The first of these was a letter, dated 12 August 2009, confirming Mr Bentley’s final written warning. The letter stated that it was delivered “by hand”, and did not refer to any loss of bonus in respect of the sanction. The second was a “review document”, which detailed, point by point, the disciplinary hearing of 7 August 2009. The document, written by Mrs Bolderson, was alleged by the company to have been produced at the end of 2009. It recorded that Mr Bentley was told that he would be issued with a final written warning, and that, on 18 August 2009, Mr Brown had given him the letter confirming this sanction. The tribunal also noted that Mrs Bolderson had recorded, on the minutes of the disciplinary hearing of 7 August 2009, “copy given with written warning 12/8/09”.
The tribunal observed that this was a case where the outcome hinged on the evidence of Mr Bentley, Mrs Bolderson and Mr Brown, all of whom it found had given less than credible evidence at some stage during the proceedings. It made detailed findings as to whose version of events was more likely.
On balance, the tribunal found that Mr Bentley had not been issued with a final written warning, and that Mr Brown had not given him the confirmation letter of 12 August 2009. It found that Mrs Bolderson’s review document had not been produced until “considerably” later than the company alleged, in response to Mr Bentley’s statement that he had not been issued with a final written warning. It also found that Mrs Bolderson’s note on the minutes of the 7 August 2009 disciplinary hearing had been made “at a much later date”.
The tribunal found that Mrs Bolderson and Mr Brown had made false statements about Mr Bentley’s disciplinary record, and that these amounted to a fundamental breach of contract. By the time of the third disciplinary hearing, in February 2010, Mr Bentley was aware that he was in danger of being dismissed, and that his dismissal would be on the basis of the false statements that he had a live final written warning on his file.
The tribunal found that Mr Bentley had been constructively dismissed, and upheld his claim.
Additional resources
- When an employee is issued with a formal warning, should the employee be required to sign and return a copy of the warning letter? Get the answer in XpertHR's FAQs section.
- XpertHR's policies and documents section provides a range of model letters regarding the outcome of disciplinary and disciplinary appeal hearings, including:
