Suspended for 'Gross Misconduct' - Advice Please

[psychy]

Hi all,

I know you guys are a knowledgeable bunch, so I thought i'll ask for some quick advice.

Well, I handed in my resignation on Wednesday 18th June. It was accepted and everything was fine.
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.

Nothing was said to me by my line manager nor my technical manager that day nor even today. But at the end of the day, my managers said to go to a meeting with them and the head of departments. Via conference call, i was told my email was 'gross misconduct' and that I was to be suspended pending a hearing.

WHAT??!?!?! Gross Misconduct?? I know it was pretty silly to write but considering I have a great relationship with these guys and it was send it jest, with no malicious intent, how is that Gross Misconduct?
Even my line manager was shocked and she said she thought my email was 'written professionally'.

So, I've had to give up my entry pass and escorted out of office.
It's a total joke really.

Any advice to give? I know it was stupid but nothing i said was a lie. The outsourced center does in fact commit all the errors i listed. It's a fact!!


Thanks in advanced all.

Mr Suspended

[GoNz0]

yeh you were stupid and no doubt screwed now as they used a dum loophole to get shut of you.

i suggest going off on a sicky until your notice is up then they cant do bugger all to you.

[Ferral]

Yeah, go to the docs and tell him / her what is happened and get a sicknote for stress induced by work. Make sure it covers you until your leaving date.

If it less than a week you can get an SC1 from docs and self cert yourself, that way they can't touch you. If they try you can react legally due to you being off officially on the sick

[Lucio]

Best piece of advice, talk to Citizens Advice, whilst I'm sure Saracen will be along with his usual informative posts sooner or later, this isn't gonna be easy.

AFAIK you'll have to go through a few basic steps

1) Write a letter to your HR department, include a copy of your e-mail and explain why you feel this is an appropiate use of the company's e-mail systems. Make sure you can include previous examples of similiar jokey e-mails to show that you do have a good relationship with them. If you can't access your e-mails any more, put in a written request for the information, you're entitled to it to be able to prepare your defence.

2) If the first meeting doesn't go your way, you'll have to prepare for a Tribunal, http://www.employmenttribunals.gov.uk/

[stevie lee]

all i have to say is this:

companies don't like being reminded about errors they commit, the big boss probably got wind of this e-mail and read about all the errors and gave the managers a rollocking for not telling them.. the managers were 'probably working on it' at the time and hadn't told the big boss.. and as you were already leaving, you ended up being the fall-guy.. the managers were probably trying to save their own ass..


why admit your own mistakes when you can quite easily blame it on another guy...


that is all..

[psychy]

I was thinking about the sicknote route. Would it work?

I have a calendar month till my leaving day (17th July). I have 4.5days of holidays left, so that's 3 weeks from now.
One week self certification sickleave which makes it 2 weeks on docs letter.

Can i do this? And they wont be able to touch me?

[GoNz0]

yes u can, and they wont be able to do a thing m8

[beanbandit]

Best piece of advice, talk to Citizens Advice, whilst I'm sure Saracen will be along with his usual informative posts sooner or later, this isn't gonna be easy.

AFAIK you'll have to go through a few basic steps

1) Write a letter to your HR department, include a copy of your e-mail and explain why you feel this is an appropiate use of the company's e-mail systems. Make sure you can include previous examples of similiar jokey e-mails to show that you do have a good relationship with them. If you can't access your e-mails any more, put in a written request for the information, you're entitled to it to be able to prepare your defence.

2) If the first meeting doesn't go your way, you'll have to prepare for a Tribunal, http://www.employmenttribunals.gov.uk/

Some good advice there, but i'd add more. Part 1 is correct, go to HR as soon as possible. If that doesn't go your way, then you are entitled to ask for a full hearing. You will be allowed to put your views forward, and you can insist on having a witness come into the meeting with you. The meeting will normally be with a senior manager, someone taking notes (ask for a full copy, your entitled to it) you and your witness. The witness can be asked questions, but cannot answer for you, unless agreed by all those in the meeting.

The same sort of thing will happen with whoever suspended you. You will get a written reply with their findings. If you decide that you don't agree with them, then it can be escalated further up the chain. If your still not happy then you go for step 2 as above.

The doctor route may not always work 100%, so don't rely on it being the easy way out. If you have any sort of history of stress, then yes go see a doctor, otherwise think seriously before going on this route.

[Saracen]

Okay, first things first.

Point 1 - The Disclaimer.

I am not a lawyer. I'll offer exactly ONE piece of advice here, and it follows shortly. Anything and everything else is comment in the context of a discussion forum, and personal opinion and not in any way to be considered advice. Neither I nor HEXUS are liable for any consequences of acting on it.

The advice - contact a suitable and appropriate competent source of legal advice before you do ANYTHING else, and do it quickly.


That's the advice over. Here's the comment.

You could have a serious problem, but it could all blow over. You've been suspended, not fired, and it could be that the "investigation" concludes it was a joke and nothing happens. But it could also be that it doesn't.

Your best bet, in my opinion, is to be sure that all appropriate steps are followed and that the company's procedures are followed to the letter. Whatever the company decides to do, it MUST follow its own disciplinary process and, of course, the law, and it must be able to prove it did. The process that they go through, therefore, may seem to be hidebound and overly formal, but that's because it has to be. They have to do the right thing and to be able to prove they did. Some investigations will amount to nothing, but when they start the process, they have to assume that it will lead to action being taken, and if it does, they may have to justify that action to a tribunal. Don't be too intimidated by the formality, therefore, because it only means they're gathering the proof to support what might follow.

So, in my view, you want proper advice before you put anything in writing, and, in my opinion, before you start trying to get sick notes. That means you need it ASAP, if not before. If you wind up before an unfair dismissal tribunal, that might backfire. You also want advice before you attend any meeting, and that will include considering if you want representation at that meeting, which you probably do, even if it's just a competent independent witness. There are rules determining who that person can be, so check them out. If I remember correctly, it can be a union representative or it can be a colleague, but not a solicitor. But find out. And, were it me, I'd want that person taking notes on the proceedings. I had to do this for a friend who faced a disciplinary that could have gone very nastily, but during that meeting, the employer said a few rather intemperate things. When they realised that I (as an independent and credible witness) been taking extensive notes on what happened, they realised that some of what they'd said and asked would not look good in an employment tribunal. No further action was taken against my friend and the matter was dropped. In my view, there were no grounds for action anyway. An allegation had been made, but it looked to me to be totally unfounded, and vindictive. The employer HAD to go through the motions, though. Whether the knowledge of my independent note-taking had any effect or influence, Ill never know, but it would have had a bearing had the matter gone before a tribunal.

The next thing to be clear on is the meaning of "gross" misconduct.

And conduct which leads to a disciplinary process has to be dealt with by that disciplinary process, and that would normally involve a series of discussions, perhaps informal then formal warnings, outlining of what it is that is unacceptable and what the employee needs to do to address the matter, all culminating ultimately, in dismissal if the offending behaviour continues.

"Gross" misconduct is something sufficiently serious that it goes to the heart of the employment contract, and is such that if proven is grounds for dismissal for that one act alone. There are many things that fall into that general category, the more obvious ones being theft, fraud, drunkenness (especially if safety is an issue) and assault or violence. But that's far from an exhaustive list and, psychy, inappropriate use of things like email most certainly is an act which is on that list. It is therefore a matter of the nature of the inappropriateness of the email.

That brings me to my next point. Do you have a copy of your staff manual, and if so, does it include a section on the use of email? If you haven't got one, get one and read it. I'd also be curious no know why you haven't, if you haven't.

But bear in mind, an employee's emails, going out in the company name, can have serious and adverse effects, including landing your employer in court, because the employer has vicarious liability for them (unless they can put across that it was not dome in the course of business). One possibility is defamation. If the email you sent can be construed as defamatory, it could open your employer (as well as yourself) up to legal action by whomever was defamed.

That leads me to wonder what the course of events was. If you sent this mail to people you worked with, they may have considered it a joke. But if it was about company A, and anyone other than company A got wind of it, it may lead to other companies taking business away from (or not giving it to) company A. So when the bosses at company A find out about it, they're not going to see it as a joke. They're going to be seriously upset, and they're going to be contacting YOUR bosses asking what the bleep is going on!

This is why companies have email policies covering appropriate use, and why people should read and understand them. Not everyone gets the joke ..... such as the 40-ish people suspended or the 10 fired by Royal Sun Alliance for sending "lewd" Simpsons cartoons, or Claire Swire's bosses at Norton Rose, who became something of a worldwide laughing stock over Claire. The whole thing, it seems, was just a joke but it led to worldwide embarrassment for poor Ms Swire, and to Norton Rose having their name viewed in a manner they very definitely (and rightly) weren't amused about.

In other words, what should have been a simple, private personal joke ended up worldwide and right out of control.

Psychy, this may go nowhere. It may be accepted that it was just a joke, but make no mistake, as proven by the above two examples, what was intended as a joke can still have far-reaching consequences, and gross misconduct dismissal is potentially certainly one of them.

So, I refer you back to the advice at the top of this post - get proper advice. Now. In fact, why are you still sitting there reading this?

[G4Z]

I have been in a similar situation myself many years ago, IIRC Gross misconduct is only something you can be sacked for if its something specifically mentioned in the employee handbook or AUP that you signed. One of the first things I would do in your hearing is ask for is a copy of your signed AUP, if they can't produce that then they have no evidence that you were even aware that the conduct could be considered 'gross misconduct'.

When I did this they simply decided to terminate my contract rather than pursue the matter so they had to pay me the notice period of that contract. It did take a letter to the MD for the UK to get that though as the HR people I was dealing with were happy to use any tactics necessary to get me out the door and make an example of me, weather they were in the right or not.

[schmunk]

IIRC Gross misconduct is only something you can be sacked for if its something specifically mentioned in the employee handbook or AUP that you signed.

I'm fairly sure that my employee handbook doesn't specifically state that I can't slaughter goats in the office. Phew - that's me out of trouble, then.

[G4Z]

Well, back when I had my experience I spoke to a solicitor who advised me of that. Because what I had done was not in any way illegal or had directly harmed the company the only way you could call it gross misconduct was if it was specifically forbidden in the handbook or AUP.

[Gingerzola]

Hi, desperately looking for help on a similar topic. I have been suspended since October 13th for use of the internet during work hours. This, even though in close to 5 years service, I've never even had a verbal warning! I have been informed that I will not be welcomed back to work and also that failure to accept an offered settlement figure (which equates to roughly 2 months pay) I will be sacked on the grounds of gross misconduct effective at close of business today.

Though using the internet during work hours is technically a breach of the companies internet policy, abuse is widespread (in a very small firm of just 7 office based staff) yet I am the only person to be punished in any way, even though I have submitted a signed decleration that another employee uses the internet just as much as I did (I only did this as someone else had done the sam eto me which led to this escalating to the point it has - that and the fact that it is true!) yet nothing has happened to them. My computer has been removed from the premises in order to be examined, which returned the verdict that nothing illegal or pornographic at all had been looked at. I am the only person to have my computer removed.

The computers at work also have no individual internet passwords and people regularly use other peoples machines. My desk and computer are also shared with another employee.

Adding it all up, it just baffles me, but am now facing a rubbish christmas with little disposable money available, unless I accept the settlement.

Can anyone give me any idea what sort of case I would have at Tribunal?
Any help appreciated.

Thanks

Tom

[0iD]

It's being able to prove 'common practice' that will swing the verdict in your favour. If you can get testimony to back your claim then you may have a leg to stand on, allbeit still a very wobbly one.

[kalniel]

Why work for a company that doesn't even have a system of escalating warnings over something so minor?

[0iD]

Sometimes 'gross missconduct' can overule the common grievance procedure of verbal & written warnings, fastracking people out the door. Having said that, my advice would be take your employment contract to the Citizens Advice & let them take a look. More often than not they'll have a source of free relevant legal advice.