How best to Approach Gross Misconduct

tomjonesrules

Jarndyce wrote: »

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!

But we do not have all the facts in front of us. Whilst I would not suggest referring to a legal helpline, I do think that if the OP decides to dismiss it is worthwhile the OP sitting down with someone who has all the evidence in front of him.

SarEl wrote: »

Based on what you have said, if he takes it to a tribunal he would loose.

I agree, but if the employee really wanted to pursue it, it could be a costly experience for the OP nonetheless.

OP, I normally take a harsh line with anything like this, but I think this employee deserves some credit. There is no doubting that he has messed up, but he has admitted to his mistake, he has explained the mess he was in at the time, and he does appear to be trying to put things right. That took some guts, many would resign and hope you never found out. You have had years of good service from the employee, and by your own admission you messed up also.

Whilst the act in itself is worthy of dismissal, taking a view of all the circumstances I would say a final warning would be more suitable.

Jarndyce

tomjonesrules wrote: »

But we do not have all the facts in front of us. Whilst I would not suggest referring to a legal helpline, I do think that if the OP decides to dismiss it is worthwhile the OP sitting down with someone who has all the evidence in front of him.



I agree, but if the employee really wanted to pursue it, it could be a costly experience for the OP nonetheless.

OP, I normally take a harsh line with anything like this, but I think this employee deserves some credit. There is no doubting that he has messed up, but he has admitted to his mistake, he has explained the mess he was in at the time, and he does appear to be trying to put things right. That took some guts, many would resign and hope you never found out. You have had years of good service from the employee, and by your own admission you messed up also.

Whilst the act in itself is worthy of dismissal, taking a view of all the circumstances I would say a final warning would be more suitable.

You haven't thought that through, have you....?

tomjonesrules

Jarndyce wrote: »

You haven't thought that through, have you....?

I am giving my opinion, based on the information presented to us. I would still recommend the OP seeks formal advice if he intends to dismiss the employee.

Always best to read a post as a whole I find - picking bits out that suit your viewpoint can lead to a poor response!

FagAshLil

Please don't sack him. He screwed up but confessed - the poor man must be going through agonies right now.

Give him a break, mate. It's good Karma.

heretolearn_2

Would you ever have found out if he hadn't come to you?

Under the circumstances, I'd give him a final written warning and another chance, not just out of compassion but for good business reasons. He's been a very good employee. You know that he is basically very honest as despite a mad moment he has now risked his job to come and put things right and he is now behaving ethically - most people would not have had the guts and honesty to come clean but crossed their fingers and hoped not to be found out, even if they had regrets. The point is you know what you have got here. God knows what his replacement will be like...finding good staff is murder.

tomjonesrules

I don't normally do emotive stuff, but in the space of a few days there have been two media reports of a parent killing the rest of their family, in one case a matter of days after a dismissal. I'm not for a minute suggesting that this man would be so desperate as to do this, but I would keep in mind his mental state when making your decision. I'm not sure how anyone would cope with dismissal at this time of year, especially if their child is unwell.

(Apologies for being so soft - must be hormonal! )

spadoosh

Jarndyce wrote: »

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!

OK!! WELL DONE ON BEING A BARRISTER/EMPLOYMENT LAW CONSULTANT/OR A PERSON WHO ACTUALLY KNOWS WHAT THEY ARE TALKING ABOUT!!

Well done on degrading alot of people out there aswell. I was merely mentionging to the OP that they should seek proffesional advice. The repucussions of this could cost his company thousands and if you are as you should suggest surely knowing all the facts is a must and surely if your offering advice along those lines you should carry a disclaimer. And im absolutley certain companines like penninsula carry more volume and substance than quoting 'jarndyce' from MSE forums.

OP you definately need professional advice on this.

Jarndyce absolutely nothing wrong with my post and no need for the scathing attack... not cricket.

Also at no point was i refering to your posts but public forums like this are certainly open to misunderstanding.


O and good luck OP hope all gets resolved as best it can.

Jarndyce

spadoosh wrote: »

OK!! WELL DONE ON BEING A BARRISTER/EMPLOYMENT LAW CONSULTANT/OR A PERSON WHO ACTUALLY KNOWS WHAT THEY ARE TALKING ABOUT!!

Well done on degrading alot of people out there aswell. I was merely mentionging to the OP that they should seek proffesional advice. The repucussions of this could cost his company thousands and if you are as you should suggest surely knowing all the facts is a must and surely if your offering advice along those lines you should carry a disclaimer. And im absolutley certain companines like penninsula carry more volume and substance than quoting 'jarndyce' from MSE forums.

OP you definately need professional advice on this.

Jarndyce absolutely nothing wrong with my post and no need for the scathing attack... not cricket.

Also at no point was i refering to your posts but public forums like this are certainly open to misunderstanding.

Peninsula? hahahahahahahahahahahahahahahahaha

John_Hancox

Many thanks for your responses so far, I feel it's becoming a little less clear cut than at first it seemed. Having the experience and voice of others in this matter is certainly a good way to air this problem without the prejudice of others that maybe affected within my company.

Here is a further response from another forum who's advice was sought.

Given what you have said here, it does appear as though the offence is potentially capable of being gross misconduct and therefore capable of summary dismissal (dismissal without notice). The Burchell test is indeed the test which is applied to any case for unfair dismissal. However, there are some pitfalls in the above scenario which you should be aware of.

Stress at work is a difficult issue. Strictly speaking, your organisation should have had risk assessments in place if the individual was at risk of a bout of stress. Arguably if the condition has lasted for a long time, stress is capable of being a disability for the purpose of the Equality Act, but it must last over a year, and it is usually unlikely that stress would count as a disability except in extreme circumstances. Regarding the stress, he could try to argue that you breached your duty of care and caused him psychiatric injury, but this would be a personal injury claim as it doesn't fall squarely into the employment bracket. You are more likely to be negligent in this regard if he has previously complained about work stress - rather than just bringing it up in mitigation because he is facing dismissal.

Case law suggests that stress won't be taken into account in a dismissal if the employee is genuinely able to distinguish right from wrong - clearly, he has come to you realising he has done something wrong, which may work in your favour. Adversely, however, this could show he was genuinely remorseful and had not actually intended deception as such - in which case dismissal may be a harsh sanction. An Employment Tribunal is not allowed to substitute its views for that of the employer, however - therefore if they find that dismissal was one of the reasonable responses available to you in the circumstances as per the Burchell test (which it may well be), it would not be able to overturn this decision by, for example, recommending that a final written warning should have been issued instead.

Regarding the lengthy hours and lack of rest breaks - the Working Time Regulations provide that if an employee is working over 48 hours per week, they should sign an opt-out to the Regulations. Additionally, they are entitled to a 20 minute break for any shift worked over six hours. Depending on the circumstances, you could be at fault in this regard. It depends entirely on whether the employee was forced to work those hours (or if he could argue this was the case by his excessive workload) or whether he chose to do so. If he chose to do so, he has no argument here; the Regs work merely to ensure that employees CAN take their rest breaks, not that they DO take the rest breaks. Additionally, 14 months is a long time to work without protest. (Not true as the employee has raised this issue several times, John)

It's difficult to say whether a dismissal in these circumstances would be fair, quite frankly. On the one hand, it is potentially theft. On the other, are his mitigating circumstances sufficient to discharge his liability for it - probably not. Practically speaking, you could have a fight on your hands, though. The best thing you can do is ensure you follow your company's internal disciplinary procedures and/or the ACAS Code of Practice and document everything throughout, particularly your investigation. You should also try to undertake the process impartially (i.e. separate individuals dealing with the investigation, the disciplinary hearing and the appeal hearing, if he requests one). As he has raised stress as a mitigating factor, you may even want to adjourn the disciplinary proceedings until you have complied with the HSE stress management standards and have compiled risk assessments etc. Additionally you may want to offer to hold the meeting at a neutral venue rather than at the company's premises, or offer him the right to be accompanied by a family member or friend rather than a work colleague/TU representative in order to counteract the stress from which he is suffering.

Ultimately there is no yes or no answer here I'm afraid! Perhaps because of the grey area it may be best to propose a Compromise Agreement in a without prejudice meeting - i.e., you agree to forego the disciplinary procedure as long as he agrees to leave quietly and waive his employment claims for a sum of money. He may even settle for his notice period if he thinks that if he is taken down the disciplinary route he can be dismissed without notice.

Your thoughts on this please ?

Acc72

spadoosh wrote: »

OP you definately need professional advice on this.

The employee has admitted to Gross Misconduct.

The OP needs to decide whether he wants to keep the employee or not and then proceed accordingly.


My personal opinion is that I hope that the employee is given another chance (it must be the Christmas factor !).