Hi all

I would appreciate your opinion on this little gem!  I work in a hospital and last Friday our gardener was witnessed by a senior manager urinating against the side of his shed, a place easily observed from a number of viewpoints.  From the smell there it seems likely this has not been the first time - although I realise we potentially couldn't prove that.  The manager wants him dismissed for gross misconduct, but I feel a little uncomfortable about it.   Is it serious enough to reasonably warrant immediate dismissal for gross misconduct?  It is clearly unacceptable but is not putting other staff or patients at risk, and no-one else accesses that area.  I'm not sure how strongly I could justify the decision if it went to tribunal. I would appreciate any thoughts you have.....

Hi Clair,

This would potentially be gross misconduct on a number of counts:

a) You state that this was clearly visible from several viewpoints, does this mean that the gentleman was guilty of exposing himself?
b) Criminal law states that it's illegal to urinate in public;
c) Depending where his shed is, there is potentially a health and safety issue here.

Your Gardener may say that he has always done this and that management are aware. If this is the case then it would be difficult to farly dismiss now.

I would see what happens in the investigatory meeting and make a decision from there.

Thanks ABC

although he was visible, according to the witness because he was facing the side of his shed you couldn't see anything exposure-wise.

Staff - you gotta love 'em!!!!!!!!!  Have we established why he felt the need to 'go' there, as opposed to going to the toilets?

If we don't have a pretty good reason then I would be inclined towards gross misconduct.  I suppose the equivalent would be an office worker urinating against a desk in the office - how acceptable would that be?  I also agree with ABC about the police issue - you can be arrested for urinating in public.

Thanks Adhna, we saw him this morning and he has denied it despite someone actually witnessing it.  At the time the witness called another manager straight away to verify what he had just seen (I don't think he could quite believe it!) and the other manager saw the puddle and from the smell said they thought it was urine without prompting from the original witness. 

Hi Clair

I would recommend that you establish whether or not this employee suffers from any condition covered under the DDA which would cause him to conduct himself in this wholly inappropriate manner.

You have said that the place can be easily observed from a number of viewpoints, but go on to say that nobody else accesses this area - who in this case would have been able to view the area from the viewpoints? Would any potential witness have been able to identify this individual as an employee of your organisation?

 FD

Hi FD

the shed is within the grounds of the hospital and the area it's in is overlooked by a long sloping windowed corridor between 2 wards, and another ward garden, which is fenced off.  So although the shed can be viewed from these points by staff, patients and visitors, none of these observers would actually access that area. 

Thank you for your advice regarding DDA, I will certainly investigate that possibility.

With regard to the criminal offence of urinating in a public place, I think strictly speaking it isn't a 'public place' as he is on private land?

 

Lying in a disciplinary does not help him but the issue is trust and confidence

I am convinced that a fww is more appropriate unless you believe there will no learning and every chance of a repetition

it sounds like you are looking for an excuse to dismiss or relying on box ticking rather than  addressing the issue of whether his conduct goes to the root of the contract

I am inclined to agree with Stan here. No external individual witnessed this employee, therefore there cannot be a potential that he brought the company into disrepute by way of his conduct

 Whilst I would be the first to acknowledge that his behaviour was completely disgusting, I do feel that the disciplinary process should be used as a corrective tool rather than a punitive one and therefore I would, were I in your position, call the employee to an investigatory hearing, establish his reasons for his conduct, eliminate a potential DDA claim in the future, or address a DDA issue if there is one.

From there, I would hold a disciplinary and following the disciplinary I would issue the employee with a first and final written warning, leaving him under no illusion that should he ever be found to be relieving himself in any place other than the appropriate place, he will leave you no option but to dismiss him.

Should he then choose to repeat this conduct then you would have not only the issue itself but also the disregard of the management instruction and then the breach of trust.

Let us know what you decide to do and how you get on!

 

Surely it doesn't matter if it was a member of the public or fellow employees who saw him, he was still potentially exposing himself and urinating in a totally inappropriate place.   Agree with comments by ABC - I would treat it as Gross misconduct as unless he can show he has a medical condition which meant he didn't have time to reach a toilet what other reason could he have for carrying out this behaviour other than blatant disregard for others and for company property and reputation.

While it's always great to be agreed with, please note my earlier comment that this is POTENTIAL gross mosconduct. I would be inclined to treat it as such unless something happens during investigation to render this an unsuitable course of action. Dismissal isn't the only possible outcome for gross misconduct disciplinaries so you'll be able to decide on an appropriate warning during the disciplinary hearing's adjournment. Don't forget that the new ACAS guide recommends you detail the possible outcomes of any hearing.

I agree that DDA matters should be considered but if I were conducting the hearing I'd be more inclined to ask, "Why did you urinate against the shed, rather than in the lavatory?" than, "Do you have any medical conditions that might have caused this?" It's about getting the right balance between allowing the employee to state his case versus almost making his case for him.

The point I was making about who saw him was one of disrepute - if a member of the public had witnessed this and identified this individual as an employee of Clair's company, then it would be a clear case of bringing the company into disrepute. This was not the case and therefore I do not believe that Clair could argue that his conduct brought the company into disrepute.

I completely agree that this employee should not have conducted himself in this manner however as I mentioned, I believe the disciplinary process to be there to correct instances of misconduct rather than punish people.

I have concerns that a tribunal may not view a GM dismissal as within the bands of reasonable responses given the fact that there isn't a disrepute issue, the employee has never been disciplined for similar misconduct before (we do not know his length of service), nobody witnessed any exposure, and for that reason I suggested I would err towards a first and final, with the ticking off of the century, leaving the employee completely clear as to his obligations in the future. To go straight to dismissal would be overkill in my opinion and I believe that if an employee can be educated by way of a severe sanction then this option should be explored before dismissal. Had anyone seen him doing it, or complained about it, I would be the first person dismissing him, believe me.

Hi, I sacked an employee in a previous job who was a cleaner and was urinating of the top of a car park roof.  The car park was part of the shopping centre he worked in.  My view was that it was completely unacceptable to be urinating anywhere other than a toilet while in your place of work.  The fact that he could have been seen by a colleague or member of the public was the issue for me, regardless of the fact that it was a staff member who had actually seen him.  He did not have a medical condition, although he did claim he had been caught short.  I had no hesitation in sacking him as this is disgusting behaviour and not acceptable from someone who was responsible for maintaining levels of hygiene.

I would think that a hospital is a public place.

The law states that anyone observed urinating in a public place is committing an offence.

If the offence was observed (with a witness and supporting statement) it is against the Law so I would suspect that it requires suspension subject to an enquiry. But the offence would need to be observed.

 

First off, there's no statutory or common law offence of urinating in public so there can only be an offence under a local bylaw, which wouldn't apply within the bounds of a hospital unless covered by hospital bylaws issued by the Secretary of State under a Power.

Second, even if a bylaw did apply, there is no offence until and unless the action has been reported to the magistrates and they have found the individual guilty.



From the facts, this does not sound like a public place either: a public place is commonly taken as meaning any street, road or other place to which the public have, or is permitted to have access. This is a wide definition of a public place, which would include the lobby area of hospital, but not an area that the public is not permitted to access, even if visible.

Notwithstanding the foregoing, the evidence appears to be circumstantial, strongly so, but circumstantial nevertheless - probably enough weight under balance of probabilities for civil action, but not necessarily compelling in a criminal action, especially as the manager cannot actually evidence the act - simply the fact that the gardener was facing the shed. The gardener may assert that he was investigating what appeared to him to be evidence of someone urinating in the garden, which is a reasonable and plausible explanation. Similarly, there is no proof of  his lying - only two versions of what was observed.

If the manager witnessed the alledged offence, rather than get a witness to verify the existence of a smelly puddle, why didn't he or she challenge the individual on the spot, in flagrante - I would expect a senior manager to have the strength of character to do that much.  Instead, he/she seems to have dumped ownership onto HR - fairly typical in my experience.

All you have is the word of one person against another - you lack independent witnesses.  For all we know, the manager might have a grudge against the gardener - there's no evidence of that, but there is almost as good a case as the rest of this for saying so. Nor is it appropriate to ask him if there are any medical or health issues which have a bearing: this is for three reasons (1) you have not not actually established he has behaved as alledged, (2) assuming he has, you are effectively asking him to incriminate himself by admitting to a contributary medical problem and (3) you have no justification for what could amount to an invasion of his right to privacy.

I chair appeals against misconduct and dismissal decisions for a very large employer and regularly have to uphold the appeals because of the weakness of the case against the employee and this would probably fall into that category. In short, there is no proof of gross misconduct, and no real case unless the gardner suddenly turns around and says "fair cop, guv".  There is only an assertion, not substantiated with direct evidence and as a disciplinary panel chair I'd be well ticked off with any case brought to me on appeal on this basis.

Sensibly, all you can do is put the allegation to him as you have done . Take him at his word on this occassion, but with the caution that if there is a recurrance then adminsitrative action will be taken dependent on the circumstances at the time and, if he or anyone else should be caught behaving in this manner, it will be assumed to be gross misconduct unless there is strong mitigation.

In the meantime, tell the offended manager to get out there and challenge the gardener at the time instead of leaving it for others - I fear this is more reflective of his/her sensibilities than it is of a real desire to demontrate firm management and leadership.

 

I love this thread - not because of the fantastic 'headline' but because of the wide ranging contributions to a very healthy debate.

IMHO we are starting to lose a bit of focus.  You need to go back to basics - if you establish the basic reason for potential disciplinary action then I suspect that most people look at it as a 'conduct' issue.  If that is the case then we need a reasonable belief that the chap is guilty of misconduct, reached after conducting a reasonable investigation (the Burchell principle).  We do not need absolute proof one way or another.  The most recent high profile example of this burden of proof look no further than the recent headlines for the chaps held responsible for the Omagh bombing. You do not have to prove guilt beyond doubt, as seems to be suggested by Taxed (apologies if I have read your post wrongly, Taxed).

So, has the employee broken a rule?  I would bet that you could count the number of employers in the UK whose handbook says that staff should not urinate in public on the fingers of one hand!  This is one of those 'we shouldn't have to write it down' things socially such behaviour is unacceptable and will be considered unacceptable in the workplace by all but the most bizarre of tribunals (although being guilty of it and getting sacked for it are two different issues).  The employee has denied doing it, but then he would if he thought he could get sacked.  He may be telling the truth, he may not - a healthy scepticism is always invlauable in circumstances like this. What evidence do we have to support the allegation, and what do we have to refute it?  On the balance of probability do we think he did it? 

Once you have established this (and assuming you have decided that he is guilty of misconduct) you then need to look at the sanction to be imposed.  As we have seen there are a number of conflicting opinions on this topic.  If he is guilty then is he guilty of a fundamental breach of contract entitling you to dismiss him without notice?  The straw poll from the posts in this thread seems to suggest an even split (our office can't agree on this one either!) between sacking and giving a warning.  Ultimately it doesn't matter what anyone here thinks - you will have seen the evidence and can therefore judge the severity.  The test for a tribunal is whether or not your sanction is within the band of reasonable responses open to a reasonable employer and that can be subjective at times (this being one of them).

Good luck with this and please keep us updated with the outcome.

Hi everyone

I have to say I am somewhat stunned at the interest this thread has generated, and thank you all so much for your contributions!  The reason I put this thread up is that, when advising me of the situation the manager was quite vehement in his arguments that the chap in question be dismissed for gross misconduct, he was being backed up by another senior manager, and I just felt uncomfortable with it, so all your responses have served to clarify my thoughts.  Thank you!

Where we are at with it so far is that I have asked a completely unconnected senior manager to investigate and speak to the gardener & the 2 managers who were 'on the scene', (should get the results tomorrow) so that before we do anything we can establish reasonable belief, or not, as the case may be.  If we have reasonable belief that he did it and there are no mitigating circumstances I can see it going formal but still do not consider it to be a dismissal.  He has never been disciplined, spoken to, cautioned for it before, there are no rules/regs specifically saying he shouldn't (as Adhna said, it's just a social no-no!), I do not think he was in what could be considered a "public" place (it's a private hospital on private land with restricted access) and he was not seen to be exposing himself.  So we'll see what happens, I'll let you know!

I would agree with one of the comments above - how sure are you that you can prove it? Presumably if the man was peeing against the shed, he would have his back to whoever witnessed it. Was it him? If he wears overalls, could he be confused with someone else - a contractor perhaps? I'd drop it, make it clear that urinating must be done only in appropriate places and leave it at that. :-)

Hi Clair

I have just come across this story and would like to add some points.

With regards to the DDA - you should already be aware if has a disability related condition.

You should also take into consideration where his nearest toilet is that he can use - and question if it may be a case of laziness on his part.

This is an employment related matter and should be handled through his employment contract irrespective of criminal or civil law.

His service, particularly if short should also be taken into consideration

Rem: is the penaly or sanction issued a reasonabe response by an employer in all the circumstances.

Dependant upon the circumstances of this particular case is may be possibke for a finding of gross misconduct.

 Would love to hear the outcome!  

 

 

A fair procedure investigates the case first only if the charge is proven do you go on to consider penalty. Doing it back to front will result in you losing at tribunal. See new ACAS guidelines.

I agree Jonnyd and this has always been the case irrespective of new guidelines - which are not applicable where I practice, however, if after investigation there is a potential for the allegation to result in a gross miconduct finding it is only fair that the employee facing the disciplinary charge be informed of this.  We here are still bound by the 1,2 3 step procedure and in any potential dismissal now must advise of this as potential outcome at step 1.

 

Guys - Please keep it real!

Lets remember the role of HR - HR is not for policing employees, firing the employee is only a negative outcome for all

Managing the situation so that the employee stays engaged, but does not behave in this way again is the better outcome. This is the role of modern HR

The employee may have no facilities perhaps covered in mud, and may not want to enter the building, I have heard of this situation in gardens and building sites all across the country!

As disgusting as this topic might be, I agree with Justin C.....level of discretion required and I think a look into the available facilities and ease of access etc should be conducted.  Can't see that it is fair or just to sack someone on this action if the employee was doing this with the best of intentions...ie. not creating further mess for other departments to spend time clearing up.

As a further note, I'm noticing a theme within these blogs where a lot of professionals in our industry seem to be far too keen to move towards the dismissal route rather than solving the issues at the root of the problem and improving their culture.

 

Jonny D - of course we will be investigating first - not sure where you got the idea we weren't?  Any mitigating circumstances will be considered.

Justin C - I agree, one of the reasons I started this thread was because my gut instinct was that dismissal would be not only over the top but unfair and difficult to defend at tribunal.  2 of our senior managers are vehement in their arguements to dismiss for gross misconduct and I wanted the opinions of other HR professionals on it to inform my arguement. 

The investigation is ongoing and only after it has concluded can we decide a course of action.  I will keep you all posted!    

How's it going Apple?

I'm hoping this thread isn't going to dry up?

Rob

Hi

I too would be interested in the outcome. 

I have some comments.  Any hospital is a public place, regardless of status and comes under civil law. 

However, back to HR.  I've always been told if there is a possibility of dismissing someone they should be suspended on full pay during the investigation.  (Any comments because this is starting to give me nightmares!)

Managers are always brave and 'forceful' when they are talking to HR about what they want us to do.  I guess we have to make sure we don't get carried along and bullied into taking an action they will later blame us for if it goes wrong!

In this case I would do exactly as you have done.  Have an investigation, hearing if applicable, remember there are numerous outcomes to an investigation, informal 'ticking off' being one of them.  ie please don't do it again and these are the reasons why etc etc. 

If its about getting to a toilet or the state of his dress stopping him from using the hospital ones, then buy him some kind of toilet facility that he can use.  (ie purpose built items that drivers/soldiers etc use, with somewhere to dispose of them hygeinically (sp?)). 

 Give him a brief training session on hygeine and why its not acceptable to pee in public.

As most people say - as he hasn't been spoken to about this before, maybe he just needs a chat.  You can fairly guarantee that if it isn't laid down somewhere, someone will assume they can do it.  (Engine in washing machine - say no more).   

Our lives would be boring without some people!

Regards

Anji

Rob - you have a wicked sense of humour but I love it!

Anji - I wouldn't say that suspending someone who may be dismissed as a result of a disciplinary action was always the right course of action to take.  It would depend entirely on the severity of the allegations.  For example, someone who has high repeated patterns of absence who is on the final stage of the process would not necessarily require suspension during any investigations.  I would say that suspension would be the answer if the employee was thought to be of any threat to the company, employees, customers or themselves.  

Appropriate actions according to individual circumstances and should be what is reasonable to one business may not be to another.

 

 

 

 

I would suspend for alledged gross misconduct as this is where you are suggesting the employment relationship has broken down so severely as to prevent it continuing.  If you allow someone to continue working - it would be hard to later say this is the case and justify summary dismissal.

 In a procedural dismissal, there is no need to suspend unless, as you say, there is an indeifiable threat to individuals or prooperty.

But while I am on this thread, we had a similar case a few years ago where a warehouseman was using the warehouse as a toilet - slightly different I know.  He decided to resign having been caught in the act.  Perhaps this should be the next competition - where have your employee relieved themselves?

 HR-Vix - I would agree that gross-misconduct cases are the most likely suitable for suspension pending an outcome.  

I work in an office environment and I do have an extremely unfortunate tale where we could not determine who the perpetrator was but the action could be described as a "dirty protest" or an unfortunate bathroom incident where a no.2 didn't quite make it to the desired location.....

Worse still, the employee had clearly left a reasonable "parcel" for another unfortunate employee to stumble upon.

Needless to say, employees were quite disturbed after the event, particularly the finder.  

Makes you wonder what some people's homes must be like!

Hi Rob

I was on annual leave last week so passed this to a colleague, will update shortly!

Here's a couple of positive thoughts:

• by peeing against the shed he avoided the need to walk to the nearest bathroom facility and clean his footwear / track dirt through.
• also his commitment to enriching the soil is a little mis-placed but the attitude of "putting something back" is commendable.

Admittedly causing offence to others who could overlook his actions and not washing his hands afterwards might be negatives (although the plants might take more offence from detergents on "clean" hands), but the man is possibly more engaged with his work than others !

I'm intrigued about the outcome of this case.  A similar thing has come to light here within the last few days where a maintenance man has been urinating in a compost bin, apparently for months! We called him in for an investigation interview straight away and he has denied it, however 3 colleagues have all witnessed it many times and when they asked him to stop he said he was 'helping the compost'!  Apparently they also eat their lunch nearby.  It is a restricted area of a school however it is not locked and pupils have been known to use the area as a short cut so could have witnessed it at some time.

There are no DDA issues.  He currently has a written warning for cutting the heads off the flowers in the grounds when he got upset one day!

Any thoughts??

Popcorn,

Complete your investigation and, if you feel there is enough 'evidence' hold a disciplinary hearing - remember decisions need to be made on the balance of probability you do not have to prove without doubt that someone did / did not do something

Check the wording of his written warning - if it is broad enough (and it should be) you could consider a final written warning on the grounds of inappropriate behaviour or, depending what constitues gross misconduct in your written particulars / d & g policy, could move straight to dismissal on this act alone

Do you know why this has only just come to light?  Your investigation will be easier if you can detail specific times / dates when this has been witnessed and also have some indication of why complaints were not raised sooner

There are obviously issues with this persons performance - if he has less than 12 months service I would consider getting rid at this stage

Claire

Hi all

apologies to everyone who was following this thread for not updating - although the investigation was completed a while ago, the whole thing got alot more complicated when the man in question suddenly became quite seriously ill and went off on long term sick, however the matter did eventually reach conclusion!

The outcome of the investigation was ambiguous, and the decision in the end was that there was not enough evidence to either prove or disprove the allegation, and no action was taken.  The gardener consistently denied urinating on the ground beside his shed, however potentially we could have built a case for disciplinary just on the basis of the inconsistencies of his evidence (he was interviewed twice) but it would have been a bit shaky, the incident was only witnessed by one person who could only see the back of the gardener, and the photo taken was of a wet patch but nothing to prove it was urine.  Similarly there was no way to prove the smell was urine or not - short of sending a soil sample for testing there was no way to prove it.  We couldn't prove he did it (although to be honest I do have a feeling that he did), and he couldn't prove he didn't.  Interestingly though, since then he has been seen using the toilet in reception which he apparently had rarely done previously!

again, apologies for the long wait to reach a conclusion to this thread!

Thanks for coming back to us with the conclusion Apple - a most enjoyable thread. I look forward to your next real-HR case study!