Gross Misconduct vs Resigned pending disciplinary hearing

Serena_Mason

I am interested to know what people think about which statement on a reference would give an employee possible future opportunities in employment? Gross Misconduct or Resigned pending disciplinary hearing?

I am going to attend a formal disciplinary meeting in two days time,(14th) for an alleged serious breach in confidence and the invite letter says, "This matter is regarded very seriously by the Company and could result in your dismissal."

I think I am going to say before the disciplinary hearing commences that I would like to ask that if I tender a voluntary resignation with immediate effect from that date, with no notice worked and receiving no pay in lieu of notice, would the Company be agreeable to halt the disciplinary proceedings.

I aware that my reference would then most likely refer to me as having either resigned whilst under investigation or as resigned pending disciplinary action. Rather than my reference stating a Summary Dismissal for Gross Misconduct.

Potential employers may see my resignation as a strong indication of guilt but then at the same time they would not know what the allegation was that was made against me.

Here is the nitty-gritty of it all ..............

Some 15-18 years ago I shot for adult-natured publications and subscriber web sites in the U.S & Europe and had obviously not disclosed this to the Company I am currently employed with in the UK, where I live and work. I have also not worked in that profession since that time.

But somehow their Client whose premises I work at has learned about this past profession. The Company advised me at the investigation hearing 9 days ago, that the Client has made the Company aware of this material of me on adult web sites.

Embarrassingly, in that hearing a screen print was shown to me, of the name I had worked under at that time, along with a photo of a younger me, which the Company stated was their Client's findings, along with a list of web searches found by Google using that name.

Faced with the evidence of being recognised in that manner, I confirmed that the photo and name were me in a profession nearly 20 years ago and that due to legally binding model releases signed at the time, that I did not own the copyrights or usage rights to those images.

I also stated at the investigation hearing that I have never disclosed that profession or name to persons in employment with either the Client or the Company. And that I believe I will have been recognised by someone in employment with the Client, who has been viewing those kinds of web sites, as opposed to me having imparted that information to persons.

However I am sure the alleged breach of confidence will be in relation to the fact that I did not disclose these affiliations that I had with the subscriber adult web sites when joining the Company.

The Company's Code of Business Conduct that I signed on joining the Company, to say I would conduct myself by it, states that:

"Employees must take care to ensure that no conflict of interest – actual or perceived – arises between their duty as an employee, and any interests outside of work."

And it says that can mean by "being affiliated to other organisations that can create conflicts of interest."

The past profession that has come to the Client's attention will mean there is no doubt that I am going to be dismissed from the Company for Gross Misconduct for a serious breach of confidence that jeopardises the Company's relationship with it's clients.

For Gross Misconduct of this kind I am anticipating a Summary termination of my contract, without working my notice and without pay in lieu of notice. Which is a standard disciplinary for Gross Misconduct..

I am currently suspended on fully pay and my contract is a temporary two month rolling contract which immediately followed a 6 month fixed term contract by the same company at their client's premises. I have a notice period of one week and I have been employed there for less than a year, so the disciplinary appeal process will not apply to me.
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I have been on the CAB and ACAS web sites and spoke to ACAS today and really it seems I am left with this one decision with regards to a reference.....resign or be dismissed?

All thoughts greatly appreciated. Thank you.

This is the 1st time in 20 years that I have been recognised in the above mentioned past profession and so now it has happened once, it could easily happen again in with a future employer, that I have not disclosed this profession to.

Everyone has a past however colourful it may or may not be, it would be great to be able to leave a past behind without repercussions. If this matter of my past profession was a criminal offence I had committed I would indeed be able to make a new life under the Rehabilitation of Offenders Act 1974. In which case I almost wish it was a crime I had been found guilty off.

Serena

NB: Going forward I am qualified masseuse and currently work part-time on a self-employed basis, so for now to avoid references for potential employers, I will work more self-employed hours. But I would still like the opportunity to return to salaried work at a later date, so the reference is still important to me. When I applied for my current job I had been self-employed for 4 yrs but they still wanted a reference contact from my last salaried job from over 4 yrs ago.

Funky_Bold_Ribena

What the job that you are suspended from? How could it be a conflict of interest? As I see it, I'd argue that was 20 years ago and you couldn't have possibly known that someone had posted your videos from that long ago on a modern day website.

Serena_Mason

Funky_Bold_Ribena wrote: »

What the job that you are suspended from? How could it be a conflict of interest? As I see it, I'd argue that was 20 years ago and you couldn't have possibly known that someone had posted your videos from that long ago on a modern day website.

It is a Reception position. The Client is an international company, with a high profile within their field.

The internet has changed immensely over the last 15 yrs and I didn't foresee the invention of affiliation web sites, when in my 20's. The affiliation web sites are like shop windows for the subscriber web sites. Whereas before affiliation web sites, only members of the subscriber sites could have access to that content. In my younger years I was content with that fact. With the web as inundated as it is today with adult performers, I did not expect material of me to surface two era's later as image links for non-members to click and subscribe to a member's pay site.

The Company that I am employed by are obviously concerned about protecting any potential risks to their Client's business and their own relationship with their Client, that might occur from one of the Company's own employees actions. And that seems to include occurrences prior to my present employment.

Serena_Mason

Whilst browsing the net for other people's experiences of resigning with immediate affect I found this chap's scenario interesting.

He resigned with immediate effect during an investigation, which he says his work accepted and he says his employers said that no disciplinary action would take place. 17 days after his resignation he says he received a letter from his employers stating they would like him to attend a post employment hearing from which the outcome would be provided on future employment references.

This is intriguing information in itself as is the lawyer's response which I will post a link to when I am permitted to. Currently restricted to posting links as a new user - the error message says. Or you could put the search terms, 'resigned-work-28th-september-immediate' in to your browser and see the justanswer.

See post dated 12th October 2013 for solicitor's response

Southend1

Seems unlikely that your photos being on the web could create a conflict of interest with a receptionist role.

Do you have union representation for the hearing? You need to get together with your rep to prepare all your arguments and counter arguments to what the employer is likely to say. If you are convinced you will be dismissed, maybe try to argue that a final warning is more appropriate.

I'd be tempted to of through with the process. You've been there less than a year so could probably manage without a reference from this company if looking for another job.

agrinnall

How long have you been employed by this company? if you started after April 2012 then you have not gained most employment rights yet so if they do sack you there's very little you can do about it. If you've been there longer then you have more ammunition; they may still sack you but I would hope that an Employment Tribunal would be prepared to consider that something you did 20 years ago is irrelevant to your employment now.

Funky_Bold_Ribena

Serena_Mason wrote: »

Whilst browsing the net for other people's experiences of resigning with immediate affect I found this chap's scenario interesting.

He resigned with immediate effect during an investigation, which he says his work accepted and he says his employers said that no disciplinary action would take place. 17 days after his resignation he says he received a letter from his employers stating they would like him to attend a post employment hearing from which the outcome would be provided on future employment references.

This is intriguing information in itself as is the lawyer's response which I will post a link to when I am permitted to. Currently restricted to posting links as a new user - the error message says. Or you could put the search terms, 'resigned-work-28th-september-immediate' in to your browser and see the justanswer.

Just cut and paste the lawyer's response here.

How many times had you met this client in person before they brought these allegations to the employer. Seems a bit strange with you not being there all that long.

marybelle01

I agree with agrinall although I see the OP has already said they don't have two years employment.

For what it is worth:

(a) once I have convened a disciplinary meeting I would not accept a resignation with immediate effect. Having gone to all the trouble of investigating an arranging it and having a panel in the room waiting, I would go through with the meeting. I might consider a resignation immediately the issue came to light, but in all honesty probably not. But on the other hand I wouldn't be disciplining you for this matter anyway - I don't think it is misconduct unless the photographs breach the law. Embarrassing yes, but you didn't do anything wrong that I can see. And nobody could recognise you unless they were looking at the sites in question - which to my mind raises more questions about them than you.

(b) I wouldn't consider an application from someone who resigned pending a disciplinary for misconduct. I have no way of verifying that they are telling me the truth about what happened. You might tell me that you were sacked about a misjudged career choice in your past, but how do I know you weren't sacked for stealing the monthly takings? But I would seriously consider the truth even if someone was guilty of what they were accused of - and if I thought the employer was being bloody unreasonable (which in this case I do) I would certainly not hold it against the applicant.

(c) I think you and that lawyer on the other site are being naïve if you think that references are the only way employers communicate. There are telephones too - and you can't prove a conversation that someone has with your previous employer. Anything can be said.

(d) You may not have considered this, but I would seriously consider how being a qualified masseuse and working in that field comes across to potential employers in the context! I don't like pointing this out, but "masseuse" is often a euphemism for something else, and in this context, it would give me pause for thought as to whether your poor choices were all in the past! That would be far more likely to cause me concern about you than a few explicit photos from 20 years ago.

marybelle01

Funky_Bold_Ribena wrote: »

Just cut and paste the lawyer's response here.

How many times had you met this client in person before they brought these allegations to the employer. Seems a bit strange with you not being there all that long.

I can post links - this is it http://www.justanswer.com/uk-employment-law/5ox8z-resigned-work-28th-september-immediate.html

Personally OP, I would google Redundancy Forum and go ask the lawyer there for her advice. She's somewhat more "worldly" and would give you an honest answer not just a legal one.

lemontart

gross misconduct ? non disclosure maybe at most, and did client send evidence via their company email - I am sure client has something about viewing adult content at work in their employees t&c.

I sincerely hope it gets sorted out and in op favor as I feel this is Grossly unfair to punish someone doing something which is not illegal 20 years ago.

lulu650

Hi OP, hopefully there will be other posters chipping in, but there might be an opportunity for a settlement or compromise agreement here. This to be raised before the disciplinary.

Within this agreement could be a tax free pay in lieu notice and, most importantly, an agreed reference.

Personally I feel it would be unfair to dismiss you, but clearly the company feel it's good name is being put in disrepute. From your post I think the company could dismiss you for SOSR (some other substantive reason)

With a legally binding agreement confidentiality will be maintained. Whilst you cannot go to an ET, there is nothing to stop you going to the press with your story. I'm not suggesting you will, but the company do not know what you will do.