How best to Approach Gross Misconduct

John_Hancox

Hi,

I am the owner of a small/medium asphalt company and recently we have had a problem with a long serving member of staff. This staff member has been until recently very reliable with a strong and reliable attendancy rate.

Last week I received an email from this employee stating that he needs to speak with me because he has "Done something foolish". I arrange to meet with this employee and discuss the matter.

We meet and discuss the matter and it transpires that he has bought some material trough us and used it to complete some groundwork and resurfacing work privately for a contact of his. This material was at a much reduced cost around 50% of it's normal cost.

The employee then states that when completing the transaction the type of material was not ticketed correctly and states a different grade of material was taken. I feel that there has been a form of deception by this employee and he has profited from his position and ability to buy this material. The employee did come to me as an attempt to rectify this situation and the monies taken by the employee are still in the company safe. This employee was visibly upset by the whole affair but I suspended them on full pay pending a disciplinary hearing.

The employee has countered the allegations with a list of mitigating circumstances and I would like some advice on the validity of these circumstances.

1. Severe financial difficulties leading to Bankruptcy/loss of house/cars etc
2. Birth of daughter whom has had health issues from birth including operations at Great Ormond Street Hospital
3. Ongoing health issues with daughter leading to severe sleep deprivation (approx 4 hours sleep per day)
4. Employees personal health issues including admission to hospital on 2 occasions with Chest pains etc (one event happened at work and I took the employee to the hospital personally)
5. The employee has stated that due to low levels of staffing and combined with their domestic situation that he has felt an increase irritability and frustration whilst performing his normal duties.
6. Due to low staff levels the employee feels that the demands on him to make up the slack and work over there normal 10 hour shift leading to 12 hour shifts regularly have added to an imbalance in his work/life.
7. Diagnosis from the Hospital was that he was hypertensive and stressed from work commitments
8. Our HR representative did not perform a Return To Work interview on both occasions of absence from work due to admission to hospital which the employee feels would have helped our company address any underlying problems that may be contributing to the cause of their hospitalization.
9. The companies failure to provide adequate work breaks (we deduct 30mins per day from the employee but the employee has not had any breaks for a period of at least 14 months)
10. A missed overtime payment of £200 has forced the employee into a corner where they feel that money came before their duty to our company.

So to break it down the employee feels that we as a company we have not taken seriously his out of character health issues, that due to their domestic situation i.e. sleep deprivation that their Judgement was impaired, the none provision of breaks, low staffing levels and the missed overtime payment have contributed to the employee making the choices that they have which lead to the in my eyes deceptive nature of the purchased material and profit.

I am looking to pursue a dismissal for Gross Misconduct but feel it would be pertinent to seek further advice from those here that may have experience in these matter. Many thanks for reading and one hopes that others maybe able to offer advice.

scheming_gypsy

Do you have a company policy that states your employees are not allowed to use their staff discount to resell?

I'm guessing that if you don't have any guidelines set up that staff can't buy good to do 'foreigners' then he hasn't broken done anything wrong... Although if i'm wrong the usual people will be along to correct me.

SarEl

Mitigation is exactly what it says. "I am guilty but I want you to consider my special circumstances". You don't have to. And many employers wouldn't.

However, if the employee has (a) admitted to a misconduct that you didn't already know about, (b) ensured that reparations have been made or will be made (so there is no loss to you) and (c) previously been a long-standing employee of good character, then my advice would be to issue a final warning and leave it on formal record for two years (which is harsh - but I think warranted) with a clear understanding that so much as five minutes late or a tea bag goes missing and he will be out of the door. I don't think, despite what you have said, that you really want to sack him. Employers who really want to sack someone do it - they don't come on forums like this to ask for an opinion. So somewhere in you there is a smidgeon of doubt that a dismissal will benefit you or him.

Mind you, I wasn't too impressed with your company either - it sounds like you need to shake up some management. Breaks should be taken, and the duty of care to the employee does seem to have been woefully lacking in places. None of that excuses theft, and it doesn't give him any legal basis to claim a dismisal is unfair - but it doesn't do you any service to be allowing these sorts of oversights.

Give the bloke a second chance - I doubt you will regret it.

scheming_gypsy

SarEl wrote: »

None of that excuses theft, .

ah... I read it as though he took the wrong stuff and ballsed the job up rather than him changing the codes himself to gain from it.

Jarndyce

Its your call. If you want to dismiss for gross misconduct you are on fairly safe ground legally (although whether you can live with yourself doing that in the precise circumstances depends what sort of person you are).

Otherwise, and with an HR hat on - the mitigation is quite strong and perhaps a final written warning is more appropriate. Up to you - but you need to ensure that you are consistent with any other recent decisions and also that your policies allow you to treat this offence as gross misconduct in the first place.

Oh - while youre at it, sort your breaks policy out and if your username is your real or company name, get that changed too!

spadoosh

I hope your name is an alias as a quick search on google shows the posts you have mad here and on uk business forums and certainly looks unproffesional at the least should your employee come accross it. As said above i would say you have grounds for dismissal but it also appears your employee is aware of this and has already began looking into and created a substantial defence. This suggest they are willing to pursue the issue should they need to and looking at the rights of your employee it could be argued that they havent been treated fairly prior to this misconduct and no/very little effort has been made to look after the welfare of this employee. Could be worth giving your insurance company a ring regarding consequences of dismissal.

John_Hancox

spadoosh wrote: »

I hope your name is an alias as a quick search on google shows the posts you have mad here and on uk business forums and certainly looks unproffesional at the least should your employee come accross it. As said above i would say you have grounds for dismissal but it also appears your employee is aware of this and has already began looking into and created a substantial defence. This suggest they are willing to pursue the issue should they need to and looking at the rights of your employee it could be argued that they havent been treated fairly prior to this misconduct and no/very little effort has been made to look after the welfare of this employee. Could be worth giving your insurance company a ring regarding consequences of dismissal.

Just an alias thats all.

Yes, it does seem that we have dropped the ball a bit here but the Gross Misconduct surely must stand. It's harsh I know but the mutual trust has been broken and makes his position rather untenable.

As for his defence when reading the full 7 page counter argument it does indeed make one question where we went wrong. Should this employee be dismissed I feel that he would appeal and possibly take it to a tribunal hence why I am asking here. The opinions of many and all that.

spadoosh

Kool beans,
Should you expect an appeal, i would speak to your insurance company, they will have more fact than misinformed wiki facts (no disrespect to posters but not everyone on here is out to help) and should there be repucusions (sp) 'suchabody on MSE forums said it was allowed' holds very little standing. And seeing as this could potentially be very costly the best route is the proffesional route, its what you pay for.

Jarndyce

spadoosh wrote: »

Kool beans,
Should you expect an appeal, i would speak to your insurance company, they will have more fact than misinformed wiki facts (no disrespect to posters but not everyone on here is out to help) and should there be repucusions (sp) 'suchabody on MSE forums said it was allowed' holds very little standing. And seeing as this could potentially be very costly the best route is the proffesional route, its what you pay for.

Yes that's right - an insurance company call centre phone-lackey with no experience whatsoever of employment law disputes is going to have a lot more experience than barristers, employment law consultants and people WHO ACTUALLY KNOW WHAT THEY ARE TALKING ABOUT!

SarEl

John_Hancox wrote: »

Yes, it does seem that we have dropped the ball a bit here but the Gross Misconduct surely must stand. It's harsh I know but the mutual trust has been broken and makes his position rather untenable.

As for his defence when reading the full 7 page counter argument it does indeed make one question where we went wrong. Should this employee be dismissed I feel that he would appeal and possibly take it to a tribunal hence why I am asking here. The opinions of many and all that.

Based on what you have said, if he takes it to a tribunal he would loose. As I said previously, mitigation is nothing more than that - it entails an admission of wrongdoing, and given what you have said this would fall within the circumstances of a "reasonable response" to dismiss, A tribunal will not consider mitigation. Only the employer can.

But as a barrister I could make a strong moral argument that if he has breached mutual trust and confidence, you did it first. You are legally responsible for ensuring that people take rest periods. You are legally responsible for having not ascertained the condition of his health and his ability to perform the duties and hours expected of him especially after a hospital diagnosis indicating that work may be a contributing factor in his health issues. As a human being, I would hope that you would have some personal sympathy with a very difficult home situation, and especially with the circumstances of his daughter.

People do act irrationally and out of character when overwhelmed. I am not saying that to excuse what he did - it is simply a fact. And it was obviously out of character for him and something he already regretted when he owned up to it before you even knew. In the same circumstances as him, might you not have taken the same "opportunity" - you are lucky if you will never know.

There is nothing incompatible with finding him guilty of gross misconduct and still not dismissing - that is why I suggested what I did previously. No employer has to dismiss someone. It is nearly Christmas - you could show some of the spirit that the season is supposed to embody and show some compassion. That doesn't mean that he is any the less guilty, or that you have "let him off" - it means that you are a better person than simply taking the easiest option.

I have two people on my staff who have criminal records - far more serious than this small incident. It isn't easy to get permissions for people with criminal records to work in legal practices, but the effort was worth it. It doesn't mean I am an easy touch - I have no sympathy with people who decide to break the law or do wrong. There are no excuses. But it is possible to redeem oneself, and if there is genuine regret, to get a second chance. I would suggest that in all the circumstances you could give him the chance.

WestonDave

There are 2 questions here - a legal one and a business one.

In terms of the business one, you appear to have a basically decent employee, that has had a temporary lapse of his usual judgement, but has spontaneously attempted to put that right. Many employees screw up, a fair few will try to get away with stuff in their personal interests, but very very few will own up and try to put it right. If you sack this one, you will be taking your chances with whoever ends up replacing him, both in terms of honesty but also work capacity, reliability etc.

He has a fair catalogue of defence points, none of which probably fully prevents a dismissal, but may be enough to create some sympathy within the rest of your workforce, and by extension some negativity if you dismiss. On the other hand you will clearly be concerned at creating a precedent if you let him off.

I think on balance the risk of keeping him, giving him the b0ll0cking of his life, telling him defence statement or not you are entitled to fire him and should, before giving him the "You've really let me down Bert - if I give you one last chance, it has to be a last chance and you need to earn my trust back" hard sell, is marginally less than the risk of dumping him, stressing about a tribunal, and wasting time trying to find another reliable employee when you already appear to be short staffed. If he screws up again you have a cast iron case for getting rid so no risk on that front, and if as I suspect he feels bad about what he's done, you'll get extra from him for the next few months.

I'd then look seriously at the work/life balance issues he raises - again so that no-one else can raise those in mitigation.