Gross Misconduct Advice please

meercat09

I'm currently suspended from my job on full pay pending investigation regarding gross misconduct. (allegedly poaching private work). My questions are: If I am dismissed (which my company have told me in writing they are looking to do) am I entitled to any notice and also would I be entitled to JSA I have two sons of school age.

Advice from anyone who has been in this situation would be greatly appreciated. Thank you.

-BA-

My understanding of where Gross Misconduct is concerned is that it is classed as grounds for instant dismissal. This would suggest that a notice period is not likely. Re. JSA, again usually in grounds of dismissal, one cannot claim JSA (can't remember the period) but if you have children they might look at Income Support if you have no other money coming into the household. I would recommend first of all familiarising yourself with the company's disciplinary procedures and follow this up with contact to CAB/Welfare Rights for advice on what benefits you may be eligible for.

Are you bang to rights on this? A call to ACAS might at least net you some advice on how to procede during the disciplinary proceedings.

meercat09

Hi thanks for your advice. I have an appointment first thing Monday with CAB and will take the disciplinary letter with me. Im panicking re. JSA as have a family to support. My company are considering dismissing me on grounds of Gross Misconduct (which they stated in my disciplinary meeting invitation letter).

Where do I stand if it is my companiy's word against mine but as far as I know they have no proof? Thanks again.

Also as I am paid monthly (last working day) does that mean I will receive no further money should they dismiss me? I have overtime from first week in January they would not normally be paid until end February.

Uncertain

meercat09 wrote: »

Where do I stand if it is my companiy's word against mine but as far as I know they have no proof? Thanks again.

For a dismissal to be fair (in law) they do not need "proof" like a criminal court.

The employer needs to show that they have a "reasonable belief" that the misconduct took place after conducting a fair and proper investigation.

To dismiss instantly for gross misconduct they would need to also show that the behaviour did, reasonably, come into this category and that instant dismissal was a fair and proportionate response.

Even if they were justified in doing this they would have to pay you for all work done up to the point of dismissal plus any accrued holiday. (They MAY legally be able to withhold any holiday over and above the legal minimum of 28 days per year - this would depend on your contract). If they fail to do this you would have a straightforward claim regardless of the rights and wrongs of the dismissal.

DVardysShadow

They should pay you to the date of dismissal, including any overtime. You say "but as far as I know they have no proof", which suggests to me that you know that the only thing standing between you and dismissal is whether they have proof. If this is the case, you could consider admitting in return for final written warning. Also consider whether it really is a gross misconduct - has the company declared this offence into your contract? Did you use your position in the company to solicit the work?

olias

If your company have told you in writing that they are 'looking to dismiss you', before they have even begun an investigation, then they are very naive. That sort of thing could win you an unfair dismissal claim at a tribunal. Keep hold of that paperwork (and any other you have/get) and make a note of all phonecalls/conversations you have had/will have on the subject.

Olias

-BA-

I would assume you would be paid right up to your final day of employment and doubtful anything more. With regard to the disciplinary, I believe they will be required to provide proof but that level of detail really isn't my strong point. Have they allowed you to take anyone with you? Do you have evidence countering the accusations? You really do need to familiarise yourself with the company's disciplinary policies as well as any policies they have around "moonlighting" or poaching of business. I believe you would need to be provided with the necessary detail of what you are being accused of in order to prepare your responses but you should really ask these questions of ACAS or an employment law expert.

bluetownbarry

Where do I stand if it is my companiy's word against mine but as far as I know they have no proof? Thanks again.

This doesn't exactly sound like a firm denial of the charges. Don't get me wrong, I'm not being judgemental but one thing you need to consider is that employment law is nothing at all like criminal law.

What that means is that the standard of proof does not need to be as strong as criminal law. In criminal law, the standard of proof is 'beyond a reasonable doubt'. In employment law, the standard of proof is based on 'reasonable belief.'

All an employer has to demonstrate is that they have carried out a reasonable investigation, reached a reasonable conclusion based on that & finally decided on a reasonable cause of action (i.e. in your case dismissal).

If you have committed the offence & the evidence is pretty damning, I would suggest that now might be the time to put your hands up. There may be a (very) slim possihility that if you can persuade them it won't happen again, maybe even you were mistaken and didn't realise you had 'poached' clients from them (don't say this if it isn't true) you might just get away with a final written warning. On the other hand, if you go charging in all guns blazing trying to be a self taught 'Perry Mason' (those of you not old enough have a look at google!) you won't achieve anything other than to leave no other options available to the hearing officer.

I assume that the meeting on Monday is a fact finding interview rather than a disciplinary hearing?

I wouldn't suggest putting too much detail here (it is after all a public forum that anyone can view) but if you could put a little more information it might help others give you more appropriate advice (i.e. length of service, brief timeline of alleged offence & an outline of what they are saying you have done).

meercat09

Many thanks for all your replies. I've worked for this company for over ten years and am alleged to have undertaken private work for a customer. Obviously I can't give too many details on here. They have undertaken an investigation and on this are looking at dismissing me after the disciplinary meeting (obviously I will get to have my say at the meeting) My work colleague will be attending with me.

bluetownbarry

meercat09 wrote: »

Many thanks for all your replies. I've worked for this company for over ten years and am alleged to have undertaken private work for a customer. Obviously I can't give too many details on here. They have undertaken an investigation and on this are looking at dismissing me after the disciplinary meeting (obviously I will get to have my say at the meeting) My work colleague will be attending with me.

Well they seem to be pretty tight so far on their procedure. Rather than rely on a work colleague, do you have union representation? You woukld be better off properly represented at the hearing.

Have they disclosed thie evidence to you yet? ACAS guidelines suggest that in order for employees to form a proper defence against the charges it is good practice to send a copy of all the evidence gathered during the investigation stage should be included in the confirmation of hearing letter. This isn't a legal requirement, but if they haven't done this, it could help you in any subsequent appeal.

heretolearn_2

When you say they have told you they are looking to dismiss after the disciplinary hearing, is that the actual wording on the letter? If so, then you might have a tribunal claim against them.

However I suspect that what it actually says is something like 'this disciplinary procedure may result in dismissal' - something else entirely and they are obliged to warn you of this in the letter. If they hadn't, THEN you could have had a case against them. If you call someone in to the disciplinary procedure, you have to state all possible outcomes to them.