Gross Misconduct vs Resigned pending disciplinary hearing

paulineb_2

marybelle01 wrote: »

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.

Seriously? I have qualifications in massage and other complementary therapies. Masseuse might be a euphemism for something else in some peoples eyes, but someone makes poor choices 20 years ago and then trains in massage so that means they arent really doing massage it must be something else?

God, talk about narrow minded.

paulineb_2

Also, no employer is legally obliged to give an employee a reference.

hcb42

SueC wrote: »

I'm not sure if you're using your real name as your username, but if so, I'd be changing that pretty quickly too, as you may find their investigations trawling the net for 'evidence' will turn up this thread and add fuel to their fire.

Also my thought, especially as the company name is also mentioned - OP edit that out asap

Dimey

Gross Misconduct would surely put off any future employer more than anything else.

Given that you haven't really breached your contract as you are not working at the other job now and it was 20 years ago so it's more of an image thing that most employers wouldn't worry about. I would suggest to your employer that you don't deserve to be harshly treated.

Offer to go quietly before the hearing, if they will allow you to resign and give you a good reference. Agree a reason that you'll both tell any future employers - eg. You want to expand your role into other areas or you want to increase your salary level, you didn't like the industry... etc etc.

If you still look the same, 20 years on - good for you!

marybelle01

paulineb wrote: »

Seriously? I have qualifications in massage and other complementary therapies. Masseuse might be a euphemism for something else in some peoples eyes, but someone makes poor choices 20 years ago and then trains in massage so that means they arent really doing massage it must be something else?

God, talk about narrow minded.

You obviously did not read what you quoted. I am not being narrow minded at all - I do not care what the OP did 20 years ago, or what they do now either. I said in context it may be unwise to say this - because an awful lot of people ARE narrow-minded and assumptions are all it takes to lose out on a job. Just how do you think it would go down to an employer - "I used to take my clothes off and get photographed for a living, which is why I got sacked, but no worries now because I am a reformed character and give massages for a living"? How far past that sentence, or some variation of it, do you think their application is going to get?

This is the real world and yes, I know that massage is a qualified profession and can even be medically recommended. My friend is also a qualified masseuse. But her other job is co-ordinator of a domestic violence refuge and she hasn't featured in any nude modelling or films. She won't have any problems explaining her career choices to future employers. Unfortunately the OP isn't in that position. And what she says and does may well be under scrutiny. I am afraid that once a cat gets out of the bag it is very difficult to put it back in there - just how big a secret do you think the OP's former career is going to remain, especially amongst employers? Somebody has already talked, and the chances are that they will again. Damage limitation suggests that appearances are critical, and what I or you think isn't going to matter - what the future employer thinks will, and in this context, are you seriously telling me that someone's mind isn't going to connect the two? Just because two and two doesn't make five has never stopped an employer before.

Serena_Mason

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 have been at the Client's reception Monday-Friday since January 2013.

I've cut and paste the solicitor's response on justanswer for the chap that had an invite to a 'Post Employment Hearing' after he had resigned from his company with immediate effect and no notice worked. See post with that heading on this thread.

Serena_Mason

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.

Here is a cut and paste as requested of the solicitor's response on justanswer:

Expert: Ben Jones replied 1 year ago.
Once your employment has formally terminated you will not be subject to the employer’s disciplinary policy. They may wish to conduct an investigation for internal purposes but need to be very careful how they use that information in future references, because an employer owes a duty of care to its employees when providing references. The test was formulated in the case Lawton v BOC Transhield [1987] IRLR 404 and is based on the consideration whether a reasonably prudent employer would have expressed the opinions which were stated in that particular reference.

This test has evolved since and it is now generally accepted that an employer who provides a reference owes the employee a duty to take reasonable care in the preparation of the reference otherwise the employer will be liable if the employee suffers damage as a result of the reference. This includes ensuring the accuracy of the facts upon which any opinion expressed in the reference is based.

This particular approach was developed in Bartholomew v London Borough of Hackney [1999] IRLR 246, in which the Court of Appeal held that the employer was not in breach of its duty of care to the employee by providing a reference which contained details of disciplinary proceedings which were pending when the employee accepted voluntary severance terms. The Court held that an employer is under a duty of care to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employee to provide a reference that was not unfair or misleading.

In the subsequent case of Cox v Sun Alliance Life Ltd [2001] IRLR 448 it was held that an employer will be negligent in providing a reference that alludes to an employee’s misconduct unless the employer had carried out an investigation and has reasonable grounds for believing that the misconduct had taken place. The Court of Appeal held that the following approach is appropriate:
• The employer had a genuine belief in the employee's guilt;
• It was reasonable for the employer to hold that belief;
• The belief was reached after the employer had carried out a reasonable investigation.

If the above conditions are met, the employer is unlikely to be acting unlawfully or negligently and can continue providing these references. If not, the employee may have a case for negligence against the employer and can consider taking this further by seeking compensation due to negligence in the civil courts.

Please press Accept and I can expand my answer and provide more detailed advice and guidance as required. I will also answer any specific questions you may have. Thank you

virtuallyfree

You might not get sacked?

Serena_Mason

SueC wrote: »

I'm no legal eagle so can't offer an educated view on where you stand with this, even though to me it seems madness for you to be dismissed for something you legally did almost 20 years prior to your employment. I don't even really see why they should have expected you to declare it so far down the line.

Setting that aside though, if your employer are bothered about that, they might also be bothered by the fact that you've named them in this post - so I'd suggest removing that fairly swifty.

I'm not sure if you're using your real name as your username, but if so, I'd be changing that pretty quickly too, as you may find their investigations trawling the net for 'evidence' will turn up this thread and add fuel to their fire.

Thanks for your thoughts. Just so all are quite sure, I am definitely NOT using anything remotely like my real name or my previous known name for the previous profession that has caused the Company concern.

Thanks also for pointing out my extreme cut and paste error, now amended, in my 1st OP.

paddyrg

As I see it, you have a problem and the company has a bigger one. They can let you go without reason of course, but if they want to try to press for Gross Misconduct or similar they're making themselves a platform for legal challenge. I would leave them to make the next move, and when they do suggest a negotiated termination where you get your wages and holiday owed, go quietly and agreed reference on the grounds that you answered all of their questions honestly and accurately. If they don't ask if a former profession would embarrass the company, then frankly that's their lookout...