Gross Misconduct Investigation

scaredofdebt

A friend has asked me for advice regards a gross misconduct investigation that she is being subjected to and I would like to canvas opinions and get some advice here please.

She has worked in a senior management position for 7 years for a medium sized company, during this time she has an unblemished record with good appraisals etc.

In June she was off sick for 4 weeks due to stress and around this time she found out she was pregnant and advised her employer of this fact upon her return to work.

Since then her boss has treated her differently and made her life more difficult, for example they have been much stricter with things like reporting of lieu time, expenses etc. Conversations made in confidence have been leaked to her boss etc.

She has recently been taking a night course outside of work but then emailed copies of the course work to her work email to complete in her lunch break and then emailing it home. The night course is in response to the increasing pressure and suspicion of the bosses motives in relation to her position in the organisation. It is therefore a contingency plan should she not return to work after the baby is born.

She found out she had been suspended last week as the company is going to be pursuing a claim of gross misconduct against her specifically for "misuse of company property" specifically e-mail and internet to pursue an alternative career. At no stage has anyone said her work has suffered. She doesn't have a specific lunch hour as such so proving the work was done generally in break time will be difficult.

My friend accepts that she has used email/internet for personal use around this course but that the usage has mainly been during breaks and during quieter periods at work. This has been occuring once a week for 2-3 months.

My friend has since emailed the company asking for a copy of the policies she has allegedly breached but been told they don't have a specific policy for internet/email usage but the policy is spread across "several other policies".

The company has an "honesty box" that is used for staff to put money in for when they print out items at work that are for personal use, this in my opinion condones the use of work equipment for personal use.

The company has been reducing my friend's department in size consistently and my friend suspects they want to make her role redundant and so they will either sack her, or make her position untenable so she won't return after maternity.

It seems to me like she has grounds for sexual discrimination or constructive dismissal but of course this may be hard to prove. She isn't in a union. They have convened an investigatory meeting for the new year but she has been told cannot speak to any work colleagues about the matter but that she can bring a work colleague with her if she wants to (or a union rep)!

I was going to advise her to bring a grievance regards specifically the way the matter has been handled and if she does end up being sacked to consider going to a tribunal.

My friend feels this has been handled badly (hence the grievance) as it has made her position (more) untenable and undermined her authority.

Thanks for any comments, especially if they are constructive.

Another_not_new_user

If she alleges that the matter has been handled incorrectly, that is called a defence, not a grievance.


But I am struggling to see the argument. Irrespective of anything else, her main complaints appear to be that they expect her to account for her time at work properly and to file expenses claims properly. Is there some argument that she should not do these things? Because it seems like a hiding to nothing that most people would expect employees to account for their time at work and to make a proper account of their expenses. So she is going to argue it's unfair that these things should be expected of her?


And as for using the employers equipment for personal use - that does not appear to be the allegation being made. The allegation is that she has been using the employers equipment to complete work to pursue another employment (which you say she has) and that she has done so in works time (which you also say she has - "and during quieter periods at work", which means in the employers time).


Out of this I can see no argument for sex discrimination - there are no grounds to suggest that this action is being taken because she is a woman, but rather because she has walked right into it by doing course work in her employers time and then e-mailing it home. And constructive dismissal isn't really anywhere on the cards - especially if she is dismissed!


Thinking this has something to do with her pregnancy may be a good guess, but proving it in the face of what appear to be true allegations - or at least true to some extent will be almost impossible. Better to concentrate on the facts of the allegations, and trying to prove that those are not true. And I definitely wouldn't suggest that she say that she only did course work during quiet times at work - that is a confession.

scaredofdebt

Thanks.

Just to clarify, sorry if it wasn't clear initially.

There's no problem with her expense claims or lieu time etc, I was merely using that to illustrate how the company has changed it's behaviour towards my friend since advising she was pregnant. ie they are going through these types of things with much more of a fine tooth comb than before. Hence my suggestion of it being sex discrimination as the company is treating her differently now she is pregnant, could be coincidental of course and no doubt the company would say as much.

The matter has been recorded as being an "investigation into misuse of company resources" (internet and email being mentioned specifically). They did show some evidence of this (internet and email history etc) during the meeting in which she was suspended.

In my own experience if someone is using the internet/email when they shouldn't be then the person involved usually gets a verbal warning not to do it again. It seems unreasonable and disproportionate to go straight to suspension with possible dismissal on grounds of gross misconduct. Especially when a 7 month pregnant woman who suffers from a mental illness is concerned.

Of course if someone is doing this excessively to the detriment of their work that would be different.

I have done some research online and a solicitor has published the following about Gross Misconduct and what constitutes it:

"Intoxication at work

Violence

Threatening behaviour

Theft

Breaches of trust

Sexual harassment or serious issues of discrimination (potentially)

Commission of crime."

I suppose "breach of trust" could cover it.

My friend is a hard working person who isn't seeking to cause any trouble or gain financially via a tribunal etc if it comes down to one. If they end up giving her a warning then she will accept that. Her concern is she will be sacked for gross misconduct and therefore find it almost impossible to get another job at the same kind of level after the baby is born.

Thanks again.

Another_not_new_user

scaredofdebt wrote: »

Thanks.

Just to clarify, sorry if it wasn't clear initially.

There's no problem with her expense claims or lieu time etc, I was merely using that to illustrate how the company has changed it's behaviour towards my friend since advising she was pregnant. ie they are going through these types of things with much more of a fine tooth comb than before. I wasn't suggesting she was doing anything wrong. But you are not being objective here. There is nothing "wrong" with checking peoples timesheets and expenses claims. Doing so is the action of a careful employer. Claiming that they didn't used to do so before but do now is (a) not provable, and (b) has no obvious link to any form of discrimination.


Hence my suggestion of it being sex discrimination as the company is treating her differently now she is pregnant, could be coincidental of course and no doubt the company would say as much. And it also actually might be true! But either way, you cannot construct a claim of discrimination by claiming that an employer is doing what they are entitled, and supposed, to do!

The matter has been recorded as being an "investigation into misuse of company resources" (internet and email being mentioned specifically). They did show some evidence of this (internet and email history etc) during the meeting in which she was suspended. And at this stage it is only an investigation. But, as I pointed out to you, the things that you said originally that they suggested she had done were actually things that you said she had done! There is no right, pregnant or not, to "do your own thing" in quiet times at work". That is not only misuse of resource, that is theft of time. You are paid to work at work, not to do your coursework.

In my own experience if someone is using the internet/email when they shouldn't be then the person involved usually gets a verbal warning not to do it again. It seems unreasonable and disproportionate to go straight to suspension with possible dismissal on grounds of gross misconduct.Your experience and what the employer is entitled to do in law are not the same thing. You are treating this as "my mate sent some e-mails to herself during breaks" - the employer is entitled to take a different view. And based on what you yourself has said, it is definitely not unreasonable of them to do so. If they can evidence that she has done this during work time then that is a serious matter - and whether she likes it or not, they are entitled to look.


Especially when a 7 month pregnant woman who suffers from a mental illness is concerned. There is no "especially" here. Being pregnant or having a mental illness does not mean that one is entitled to act as one wants at work and escape the consequences. That would be discrimination! They are investigating what they believe may be misconduct. They are entitled to do that.

Of course if someone is doing this excessively to the detriment of their work that would be different. No it wouldn't. Detriment to ones work is not the test applied. Did you do it in working time is the test. And you say that she did. That is the employers case (if they can evidence that and if they decide to pursue it - they may not).

I have done some research online and a solicitor has published the following about Gross Misconduct and what constitutes it:

"Intoxication at work

Violence

Threatening behaviour

Theft

Breaches of trust

Sexual harassment or serious issues of discrimination (potentially)

Commission of crime."

I suppose "breach of trust" could cover it.


This is not the law. These are examples. Gross misconduct could be a lot of things - in the end it is up to the employer to decide and to evidence and to defend if necessary. Where a dismissal is challenged in law, the actual test is whether dismissal is amongst the range of responses that a reasonable employer might consider. And you need to be clear - on the issue of doing coursework during working time, if they can establish reasonable belief that she did this, then dismissal is within that range. "Theft of time" is still theft - she is paid to work and only to work.

My friend is a hard working person who isn't seeking to cause any trouble or gain financially via a tribunal etc if it comes down to one. If they end up giving her a warning then she will accept that. Her concern is she will be sacked for gross misconduct and therefore find it almost impossible to get another job at the same kind of level after the baby is born.

Thanks again.

You need to be objective. You cannot help your friend if you are not. Being hardworking is also not a defence - it may be a mitigation but employers are not obliged to accept mitigation. Her concern may be that she is dismissed for gross misconduct - my concern is that the employer may have cause to. If the employer evidences any part of what you said about doing her coursework in work time, they will have cause to. Which is not the same thing as saying that they will. It is saying that they might.


Tribunals are not about what level of sanction you will accept. They are about whether the employer can show cause to believe something (not the same thing as proving it either!) wrong was done, and if they can, whether it was reasonable to dismiss. That's the shorthand version of what they do, but it's a very accurate rendition.


Being objective, you have to accept that the employer may have a case here. So the job is to look at what that case might be and what they can show to support it. Not trying to argue that being pregnant and mentally ill is the cause of the investigation. Because that cannot be evidenced. The fact that she has done something wrong, however, may be.

FBaby

It sounds like they have lost faith in her integrity. Could it be more of a result of her being of for 4 weeks with stress when they are not convinced she really was stressed. They can't confront her on this as clearly they can't challenge a sick note, but similarly, she can't convince them of the seriousness of it if they are chosing not to believe it.

My view on the actual allegation would be as such: She is contracted to work mimimum x number of hours a week. Say 40 hours. Once a week, she emails herself the work she's got to do at 12pm and then emails it back to herself at 3pm. They could very well deduct from this that she worked on her assigments for 3 hours. If they can also show that during that time, she didn't respond to emails that was coming her way, or produced any particular piece of work, it could strenghtened their asssertion that she spent all that time during her personal work. If as a result she worked only 37 hours a week, then that makes it a problem for her. Or worse (and this is what I suspect is happening), she did work 43 hours, but then claimed the 3 hours as lieu time.

I really can't see how she can have a case of discrimination when she clearly engaged in activities that she shouldn't have, even if she tries to make a case that what she is accused of is not worthy of gross misconduct.

Gavin83

scaredofdebt wrote: »

Especially when a 7 month pregnant woman who suffers from a mental illness is concerned.

I have to say these are not reasons to hold back a gross misconduct charge. If she's guilty of gross misconduct she's guilty, simply put. I'd also say most of your other points are irrelevant. If she gets sacked and claims discrimination all they have to do is present a valid reason for terminating her employment.

I also think your understanding the charge. I don't think it'll be for using the printer/Internet at work, it'll be for doing external work during her working hours. This is a serious offense and certainly worthy of a gross misconduct dismissal. Her job is basically to convince them that she wasn't doing it during her working hours.

From what you've written it seems they've been looking for an excuse to sack her, either because of the stress leave, her pregnancy or another matter. However proving this will be virtually impossible and sadly for her she's basically handed them an excuse on a plate.

She now has the task of convincing a company who want to sack her not to terminate her employment for a valid reason. I feel if she does get fired for this then the risk of taking it to a tribunal is too great. It'll be a close case and the worst case scenario would be her left tens of thousands, if not hundreds of thousands out of pocket and a whole bunch of future employers who wouldn't even consider touching her.

I wish her all the best of luck in fighting this but she's got a tough task ahead of her.

Takeaway_Addict

Gavin83 wrote: »

I have to say these are not reasons to hold back a gross misconduct charge. If she's guilty of gross misconduct she's guilty, simply put. I'd also say most of your other points are irrelevant. If she gets sacked and claims discrimination all they have to do is present a valid reason for terminating her employment.

I also think your understanding the charge. I don't think it'll be for using the printer/Internet at work, it'll be for doing external work during her working hours. This is a serious offense and certainly worthy of a gross misconduct dismissal. Her job is basically to convince them that she wasn't doing it during her working hours.

From what you've written it seems they've been looking for an excuse to sack her, either because of the stress leave, her pregnancy or another matter. However proving this will be virtually impossible and sadly for her she's basically handed them an excuse on a plate.

She now has the task of convincing a company who want to sack her not to terminate her employment for a valid reason. I feel if she does get fired for this then the risk of taking it to a tribunal is too great. It'll be a close case and the worst case scenario would be her left tens of thousands, if not hundreds of thousands out of pocket and a whole bunch of future employers who wouldn't even consider touching her.

I wish her all the best of luck in fighting this but she's got a tough task ahead of her.

You are grossly exagerating the potential costs involved though I don't disagree with the rest of your post.

OP, I would suggest if she is a union member she speaks to them, if she has household insurance look if there is legal cover.

She may also want to read up on settlement agreements as whilst the company might feel they have the right to dismiss they might practically look at a small pay off (check on maternity pay etc) and an agreed reference saves them any future hassle and defending of a tribunal claim.

PHILANTHROPIST

Ive just read this post.

I think other members are largely correct but may be coming at this from a cup half empty viewpoint.

Based on my own experiences in defending employees in similarish circumstances I'd say that gross misconduct appears to be unreasonable if what the OP says is true. Having an honesty box and a lack of an internet policy in this day and age is amateurish.

Based on the evidence presented and length of service I'd be happy to help the OP, or the pregnant employee, and they may well find a compromise. The matter needs urgent and possibly somewhat cunning counter action. For the avoidance of doubt this is not a member touting ... I'd help pro bono or recommend a good and cup half full "cost effective" barrister. Also check out to see whether employee has legal expenses cover under her home and contents insurance.

Regardless, IMO the employee needs to wrestle back a degree of control. The disability discrimination angle may also be worth throwing in the pot. A grievance will help. Many employers attempt to bully senior employees out of the door and can use dubious and often unreasonable tactics to do so. it can be a cheaper option and less time consuming than redundancy. That is prima facie unlawful. At this stage I doubt the employer truly knows what the evening course is intended for ,,,, or am I being thick !?

Can we presume that the OP or employee has to date an exemplary disciplinary record ?

Hope that gives the OP an option ... but not a guarantee.

Phil

FBaby

My friend accepts that she has used email/internet for personal use around this course but that the usage has mainly been during breaks and during quieter periods at work. This has been occuring once a week for 2-3 months

Doesn't this imply some likely wrong doing though? A bit of a coincidence that them questioning time in lieu is coming up at the same time than the above.

ohreally

Gavin83 wrote: »

If she's guilty of gross misconduct she's guilty, simply put.

That requires to be determined through a properly convened hearing where the evidence can be tested and with access through recognised channels to an appeal process.

Another_not_new_user

PHILANTHROPIST wrote: »

Having an honesty box and a lack of an internet policy in this day and age is amateurish. Interesting. You think that employers thinking their employees are capable of being honest is "amateurish"? But regardless of that opinion, the employer has a system. Presumably the OP's friend, being an honest person, chucked in the amount of her wages corresponding to the amount of time that she spent doing coursework in works time?

For the avoidance of doubt this is not a member touting ... I'd help pro bono or recommend a good and cup half full "cost effective" barrister. Actually, that is exactly what it sounds like. Operating pro bono does not mean "not touting for business", and recommending a barrister who will charge is definitely touting for business.


For the avoidance of doubt, as I have repeated often, there is no evidence that anybody is who they say they are on the internet. Nor is there any guarantee that they can do what they claim they can do.


The purpose of sites of this nature is to act as a public forum. You may get some useful advice. You may not. But if you want legal advice then go to a lawyer chosen by you, with the right background and experience. Do not rely on the "good graces" of an anonymous individual you have met on an internet site, do not assume the quality of their advice or their recommendations are good, and do not disclose personal information to anyone which may be used against you.

If the OP wants legal advice, which at this stage would be purposeless since the employer has actually done nothing wrong in deciding to investigate, there are plenty of good employment law solicitors around, and whilst most will charge (initial consultations are often free, so it is best to take advice when you need it) they do not generally costs as much as a barrister. Some CABs can refer people to appropriate legal representation, and some areas may also still have law centres that take on employment cases.


However, it needs to be underlined here that the employer has brought no allegations yet, and may not do so. An investigation does not mean that allegations will be brought. And unless the employer brings an allegation of gross misconduct and dismisses (there being no reason why even gross misconduct must automatically lead to dismissal) then there is no case of anything at all.