Suspended for 'Gross Misconduct' - Advice Please

[noTHINGface]

From just what you said above it does sound like constructive dismissal. If you're that aggrieved then talk to your local CAB or solicitor should you have access to one.

[badass]

My advice is to talk to the CAB or get an employment lawyer involved, and ignore any other advice on this thread.

[Gingerzola]

The company does have a system of disciplinary procedure, they've just chosen not to follow it on this case.

I've been to the C.A.B. from whom I wanted advice on the settlement and any likely outcome of a tribunal, but they could not give any as they were not insured to.

Any solicitor or other place on the internet offering advice is chargeable and unfortunately, I'm in no position to pay for it at present.

A fellow employee signed a decleration relating to my internet use and this formed part of the investigation, leading to my computer being removed for analysis, yet when I also signed a decleration relating to another employees internet use in my disciplinary meeting, nothing has been done to follow this up. This womans compuer has not been removed and she has not faced a 7 week suspension!

I have a close of business today whether to accept roughly 2 months money and a reference.

[G4Z]

I think that is quite an unreasonable demand to make you choose without any legal advice, a good employer would give you time to consider it.

If it were me, I might be a bit bullish and just say 'Look, you have not followed your own policy here, here and here'. If you give me x (For 5 years service, I would go for at least 6 months) months pay as severance then you can avoid a long and costly tribunal on the grounds of sexual discrimination (after all, they didn't punish the woman did they?) and other grievances.

That's just me and it will depend on your own personal circumstances as to how you handle it. I think if they thought they could sack you for gross misconduct then they would have, after all it's the cheaper option.

[Gingerzola]

They sack me for gross misconduct as of close of business today unless I accept. Without any firm advice i may just accept and start the new year fresh without having her looming in the distance.

[G4Z]

Well, do they have a copy of your signed AUP?

If they don't have that how can they possibly sack you for gross misconduct related to internet usage?

Hopefully Saracen will show up and give some comments.

[Blitzen]

OK...here's the deal.

1. Was what happened really what you said in your opening post or is there more to it?
If so, this is definitely not Gross Misconduct. Using email, although possibly against company rules can be classed as that but only if it puts information about the company at risk (ie. pr0n or dodgy sites) or if there are remarks in there which can damage someones reputation permanently (possibility with this one but unlikely).

2. Did they offer for you to have any kind of representation with you whilst you were disciplined leading to suspension?
No kind of disciplinary action (even suspension) can take place without a good reason, unless you are offered representation at all times when meeting with senior management.

3. What Saracen mentions regarding the company handbook holds ALOT of water. Do you have one?
If there is no handbook available, have you read anything and signed to the effect that you know the rules and fully understand them? If not, they are breaking the law.

4. Have you had the allegations in writing at, or shortly after the time of the alleged action?
If not, IT IS UNFAIR DISMISSAL

5. Have you been offered the right to appeal the decision?
If not, again, its UNFAIR DISMISSAL

Businesses must abide by VERY strict guidlelines to disciplinary procedures these days. Any waivering from these guidelines can be fatal for a business.

The one question that really stands out that you didn't answer is exactly what they suspended you for? What was the actual offence?
If it was derogatory remarks to colleagues then you may will be in the shat.

Lastly, how long have you been there?
If its less than 6 months you haven't got a leg to stand on.

If it's more than 6 months and they decide to fire you, go straight to the job centre and ask for form IT1. Take them to tribunal and win.

Tribunal is very simple to do and the board will usually onyl accept your case if they think you will win as this stinks of constructive dismissal.

I think that is quite an unreasonable demand to make you choose without any legal advice, a good employer would give you time to consider it.

If it were me, I might be a bit bullish and just say 'Look, you have not followed your own policy here, here and here'. If you give me x (For 5 years service, I would go for at least 6 months) months pay as severance then you can avoid a long and costly tribunal on the grounds of sexual discrimination (after all, they didn't punish the woman did they?) and other grievances.

That's just me and it will depend on your own personal circumstances as to how you handle it. I think if they thought they could sack you for gross misconduct then they would have, after all it's the cheaper option.

G4Z is actually pretty much on the button with this:
1. They CANNOT make you decide something like this without giving you the opportunity to seek legal representation from either a solicitor or a union.
2. They sound as though they have ignored their own policy. That enough would enable you an almost certain win in tribunal.
3. Internet usage, although possibly a disciplinary offence, IS NOT GROSS MISCONDUCT on its own. What is the Internet Usage Policy within the business? Have you seen it and signed to the effect you understand it? If not, regardless of what you looked at on the internet, this does NOT CONSTITUTE gross misconduct. If you have read the policy and agreed to it, then they may have grounds to fire you but only you know that.
4. They are offering severance pay to shut you up and nothing more. Fight your corner and see what happens.

(No i am not an employment law specialist. I have however sat on many industrial tribunal board and heard every story under the sun.)

[Saracen]

There's not much I'd add to what's already been said. The biggest single piece of advice is to get competent advice from a qualified expert. Maybe that's a lawyer, or maybe a website legal service.

The problem is, as Blitzen said in point 1, that it ALL depends on exactly what happened.

What I will say is that there is a procedure for dismissing employees, and a minimum is laid down by law. A fair bit more will depend on exactly what the employer's policies and regular practices have been, but they have NO choice but to follow the statutory minimums. If they don't follow something they had to, they'll lose any unfair dismissal tribunal.

However, some offences are so serious as to qualify as gross misconduct and that can result in being fired pretty much on the spot.

From reading your account, IF it's accurate and IF it's complete (and bearing in mind that some relevant things might be things you don't realise are relevant, so didn't think to mention) .... but with those caveats, what they've done sure does look to me like they followed procedure.

But, Gingerzola, if it was me in the position you're in, I wouldn't want to have to make the decision you have to make with the information you've given here, without professional advice.

The way they've handled this looks, to me, to be wrong in so many ways, but that doesn't necessarily mean they can't do it. They may have reason. And that's why I'd want advice. That's also why I think this "decide today" stunt is decidedly unfair - it almost prevents you taking a considered decision, based on advice and for that reason alone, it looks unfair, especially after weeks of suspension.

Were it me, I'd consider I was being brow-beaten and threatened by that stance, and it'd put my back up. But then, were it me, I wouldn't have waited through weeks of suspension before getting advice.


One thing, Blitzen .... you said 6 months?? Surely it's 12 months?

[richieuk]

I'd go to them and immeadtley state that you would like a full statement regarding your dismissal and the time to seek legal advice. If they say no, then Tribunal instantly, as they are obviously not being reasonable, if they give you the time and the statement, then use that to look into your options more clearly.

Without thier side of the story, your in a dark alley and cant be fully aware of where it leads, and I know thats not a position i'd like to be in.

[Blitzen]

I'd go to them and immeadtley state that you would like a full statement regarding your dismissal and the time to seek legal advice. If they say no, then Tribunal instantly, as they are obviously not being reasonable, if they give you the time and the statement, then use that to look into your options more clearly.

Without thier side of the story, your in a dark alley and cant be fully aware of where it leads, and I know thats not a position i'd like to be in.

You are correct. Not only morally but legally.
Without a statement of the facts, and the opportunity to contest them, they are acting outside of the law and dismissing unfairly.

Also, there must be a specific policy regarding internet usage AND there must be evidence you have read and understood it. If there isn't, the company cannot file gross misconduct.

One thing, Blitzen .... you said 6 months?? Surely it's 12 months?

Have they changed it again?
Prior to 1999 it was 3 years. In 1999 the DTI changed it to 6 months.
They may have changed it recently to 12 months but i haven't been involved in this kind of thing since 2005.

[Saracen]

....

Have they changed it again?
Prior to 1999 it was 3 years. In 1999 the DTI changed it to 6 months.
They may have changed it recently to 12 months but i haven't been involved in this kind of thing since 2005.

Erm .....

As far as I know (and can see) ...

Employment Rights Act 1996, s.108(1) said two years

Section 94 does not apply to the dismissal of an employee unless he has been continuously employed for a period of not less than two years ending with the effective date of termination.

But then Para (3) of the The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 1999 amended it ...

Section 108(1) of the 1996 Act is varied so that for the reference to "two years" there is substituted a reference to "one year".

As far as I'm aware (though it could have been amended again), that one year period still applies. It certainly came into force (with that SI) on 1st June 1999.


Of course, as always, things are never quite that simple. There are exceptions to it, and a list of situations where there is no qualifying period at all. IIRC, for instance, things like dismissal for trade union activities qualify immediately for the ability to pursue unfair dismissal, with no minimum qualifying period of employment, and there's a few other qualifying reasons.

This sort of thing is one reason why, regularly, when commenting on legal stuff, I point out it's forum opinion not advice ... 'cos it's terribly easy to get bitten by amendments, exceptions, circumstances that differentiate one situation from another and/or precedents. Well-qualified lawyers are quite capable of having extended arguments about how this bit of law should be interpreted, or about which conflicting statute takes precedence in a given set of circumstances. Indeed, that's largely what the appeals process is there for.

So id the experts can't agree what the law says and need an .... erm .... judge () to decide, what chance do we stand?

And that, Gingerzola, is also why several people have commented .... get expert opinion. Nothing you get told here carries much, if any, weight.

[bsodmike]

Just my two cents; probably no where as insightful as all the great advice already presented here...but over the years of landing my foot right where it ought not to be...when presented with such an opportunity I ask myself 2 things whilst reminding myself of no. 1:

1. "A good word is an easy obligation; but not to speak ill requires only our silence, which costs nothing." - John Tillotson, English prelate (1630 - 1694)

2. Will any good come of this?

3. Do I really want to become *that* butterfly?

Simply put, you could have saved yourself all this headache if you decided to keep the email to yourself. Of course - this not going to help you now, but at least in the future...1, 2, and 3 ...may come in handy for you once again

Best,
Mike

[togoodtobetrue]

Can't you get the guy who you sent the e-mail to, to back you up and explain that it was just a joke ?

[G4Z]

Can't you get the guy who you sent the e-mail to, to back you up and explain that it was just a joke ?

Did you even read his post?

He didn't even mention email, your low post count makes this a bit suspicious (i.e spamming for post count for free scan delivery).

edit : I just realised you posted that other work related thread, I would guess you're not spamming so I retract that bit at the end.

[togoodtobetrue]

Did you even read his post?

He didn't even mention email, your low post count makes this a bit suspicious (i.e spamming for post count for free scan delivery).

edit : I just realised you posted that other work related thread, I would guess you're not spamming so I retract that bit at the end.

I wrote an email on Thursday saying i was leaving to various departments and our outsourced sectors. In it I said thank you and i've had a great time. The usual. I also joked to our outsourced sector, that thanks for screwing up trade inputs, entering wrong details etc. Just in jest, as I have a great relationship with them.
In fact, one of the guys there called to say why i was leaving etc and we shared a joke about the email.

?? Calm down mate he said he sent an e-mail joking about how the outsourced sector screws up inputs ect. And that he is facing Gross Misconduct because of this e-mail.

I simply replied why don't you ask the guy who you joke with to tell your superiors that it is just banter

[Jay]

I can 100% say that In my place of work what you did would not have been gross misconduct, it probably wouldn't have even been a formal disciplinary. I would only have done this if the person who the email had been aimed at had taken it badly and requested an investigation.

I would have been more pissed off about the huge amount of email traffic you just added but I have 200 users