Advice Needed

spidereyes

Im looking for a little bit of advice, I can't say too much but will try to provide as much information as possible.

Basically a particular company has looked like it won't be around much longer, they've had difficultly in paying the staff in recent months.

Suddenly one of the highest paid members of staff has been suspended, and it looks like it could be a ploy to get rid, as they have no real grounds for redundancy.

The allegations made against the employee in question are fairly unfounded, one false, another more a case of a misunderstanding. Neither of which are serious on the face of it but could constitute gross misconduct, which I believe the employer is aiming for.

The employer has already made the comment to the employee that that they can no longer work together -despite not even yet having any kind of investigatory meeting or disciplinary (both are meant to be forthcoming).

Nothing has ever been said in the past and no warnings have ever been given, despite the fact that if the employee was aware there was a problem they could have resolved the issue immediately.

So my first question is, can an employer immediately go to gross misconduct even if it is something which should have been raised as a minor issue in the past and hence resolved?

Secondly the fact the employer has made it clear the working relationship is over, does this provide grounds for unfair or constructive dismissal when not even any investigation has taken place yet?

Thirdly the issue is more a case of a misunderstanding, ie, the employees contracts states X but there was a verbal agreement in place that X did not apply. Now the employer is saying that X does apply and always has and that now the employee is in breach of contract. This agreement has been in place for around 2 years, needless to say if the employer wanted it changed at any time then they could have said, rather than suddenly decide right now the employee is in breach of contract.

To what extent does the employer or the employee have to go to prove whether the agreement ever existed?
If for example the employee had proof that verbal agreements (some staff who have been employed for years without any kind of contract) in the company existed and that terms were kept casual, could it be argued that this verbal agreement did in fact exist?

Fourthly is the employer in breach of confidentiality if other members of staff were told the particular employee was to face suspension several days before the employee themselves were even told of the fact, and this can be proven?

whitewing

Regarding 'fourthly', I wouldn't bank on any other employees getting willinglyinvolved in a dispute between the boss and another employee. Times are hard and most people, in my experience, won't take a principled stand if they even think it may affect their own job or reference.

Nothanks

Firstly: Yes they can, but if it was a case i was repping i'd be using your point as mitigation: "If it was a gross misconduct issue, why wasn't it raised earlier?"

Secondly: I wouldn't have thought it would provide evidence to support constructive dismissal on its own, but to me it does reek of the idea your pal is on the way out. This "breakdown of trust/working relationship" is the most common reason I've seen when employers refuse to take people back on even after losing for unfair dismissal at tribunal. Sadly, due to the woeful anti-union legislation brought in by the tories and kept in by labour, sacking someone on the spot, going to tribunal, losing and paying the fine can still work out cheaper for an employer.

Thirdly: I would argue here that the clause x has been disregarded or replaced by new implied terms based on custom and practice. Suggest googling 'custom and practice' and having a nose at the directgov site - not so easy to post a link as i'm on my phone!

Fourthly: Sadly, i fear whitewing has a fair point here. Even so I'd be adding it to my case around persecution of one staff member, but i wouldn't be building a case around it.

In conclusion, it sounds to me like your pal is on the receiving end of a one man band type operation who is out to get rid. If it's a larger employer with decent HR policies, great! Read up the policies and rely on the fact that higher up managers tend to stamp down on little managers who think they're God and don't follow policy. I'm making assumptions here, obviously. Feel free to PM me if you want to go into more detail.

spidereyes

Nothanks wrote: »

Firstly: Yes they can, but if it was a case i was repping i'd be using your point as mitigation: "If it was a gross misconduct issue, why wasn't it raised earlier?"

Secondly: I wouldn't have thought it would provide evidence to support constructive dismissal on its own, but to me it does reek of the idea your pal is on the way out. This "breakdown of trust/working relationship" is the most common reason I've seen when employers refuse to take people back on even after losing for unfair dismissal at tribunal. Sadly, due to the woeful anti-union legislation brought in by the tories and kept in by labour, sacking someone on the spot, going to tribunal, losing and paying the fine can still work out cheaper for an employer.

Thirdly: I would argue here that the clause x has been disregarded or replaced by new implied terms based on custom and practice. Suggest googling 'custom and practice' and having a nose at the directgov site - not so easy to post a link as i'm on my phone!

Fourthly: Sadly, i fear whitewing has a fair point here. Even so I'd be adding it to my case around persecution of one staff member, but i wouldn't be building a case around it.

In conclusion, it sounds to me like your pal is on the receiving end of a one man band type operation who is out to get rid. If it's a larger employer with decent HR policies, great! Read up the policies and rely on the fact that higher up managers tend to stamp down on little managers who think they're God and don't follow policy. I'm making assumptions here, obviously. Feel free to PM me if you want to go into more detail.

Thanks very much for the replies

Unfortunately the company is very small, only a few members of staff and then the owners so there is no protection here from senior management and the likes....

In terms of the fact that other employees have been told before hand, I think they would be willing to testify to that fact as they have now not been paid on time for the past two months due to the company's struggling finances, and to be honest none of the staff want to really be there any longer, especially in light of recent events.

I will be definitely looking into custom and practice further so thanks for the advice on this.