Sacked

citykid5

Hi all . This may be the wrong section of the forum to post but here goes.
My son was recently sacked for gross misconduct from his employment, with immediate effect and no notice given. The reason stated by his employer were that he'd been late on several occasions ( never previously given any official warnings about this) and also being asleep at his computer, yes I know totally unexceptable , but he wasn't feeling very well at the time. He has appealed against his dismissal on the grounds of gross misconduct , based on his contract of employment stating the company's dicaplinary procedure states that both lateness and falling asleep at your work station are described as misconduct ? And therefor he should of reserved a months notice by the company as set out in their contract of employment. However despite informing hr of this in his appeal, they have still excepted thier diccision as being correct.
He hasn't been as the firm for the two years required for him to appeal unfair dismissal, and going down the employment tribunal route I believe costs around £1200 or so.
So my question is would it be possible for this to be heard at a small claims court? To try to make the company pay his notice petiod

Undervalued

As you say he's not been employed long enough to claim unfair dismissal.

The distinction between misconduct (where notice is due) and gross misconduct (no notice) could however be the subject of a wrongful dismissal claim which does not need two years employment.

Although a count court can deal with straightforward non payment of wages etc it cannot rule on an employment issue so you would need to check carefully if the matter fell into their jurisdiction.

Another member who posts here regularly will know the answer to that.

barba

Falling asleep at work and being late multiple times and you're looking to take aim at the company!

I know what I'd be doing if it was son....

duchy

The contract specifically mentions falling asleep at your desk in the contract ? Wow !!

Ultimately under two years a company don't have to give a reason so you could go to a tribunal and them decide that even though the company didn't follow their own internal policies they didn't act unlawfully under employment law and uphold (in fact that is what I would expect them to do tbh). Small claims could hear it theoretically but they tend to be very real world and may decide that falling asleep and still expecting to be paid is taking the michael - a lot of magistrates are either small business owners or retired from same so might not give your sleepy boy much sympathy.

Undervalued

barba wrote: »

I know what I'd be doing if it was son....

Which is completely irrelevant!

If the company has not acted lawfully in deeming this GROSS misconduct then they owe him a month's wages. Two wrongs don't make a right!

OP, either way he is entitled to be paid for all accrued but untaken holiday. Some employers like to pretend this is forfeited with gross misconduct but that is not so.

Undervalued

duchy wrote: »

The contract specifically mentions falling asleep at your desk in the contract ? Wow !!

Ultimately under two years a company don't have to give a reason so you could go to a tribunal and them decide that even though the company didn't follow their own internal policies they didn't act unlawfully under employment law and uphold (in fact that is what I would expect them to do tbh). Small claims could hear it theoretically but they tend to be very real world and may decide that falling asleep and still expecting to be paid is taking the michael - a lot of magistrates are either small business owners or retired from same so might not give your sleepy boy much sympathy.

They don't HAVE to give a reason but if they have done so then they may have left the door open.

Actually, thinking this through, if they DON'T give a reason then it cannot be gross misconduct! If they have proper grounds to deem his behaviour gross misconduct (and are therefore entitled to dismiss without notice) then the onus would be on them to demonstrate that they were justified in so doing.

Incidentally, small claims in the County Court are heard by a district judge and not a lay magistrate!

Another_not_new_user

I'd have to say he is on a hiding to nothing. Being late once is misconduct - repeatedly being late and falling asleep at work could constitute gross misconduct. Certainly the onus is on the employer to prove that a reasonable employer would consider this gross misconduct - but the ONLY court that can determine that would be an employment tribunal. Since nobody else has jurisdiction to rule on this matter, and without such a ruling then the employers decision stands as fact, then no other court can interpret the contract to mean that the employer owes him any pay for notice. The cost of making such a claim would seem to be out of proportion with anything he could possibly gain from then getting notice pay.

Undervalued

Another_not_new_user wrote: »

I'd have to say he is on a hiding to nothing. Being late once is misconduct - repeatedly being late and falling asleep at work could constitute gross misconduct. Certainly the onus is on the employer to prove that a reasonable employer would consider this gross misconduct - but the ONLY court that can determine that would be an employment tribunal. Since nobody else has jurisdiction to rule on this matter, and without such a ruling then the employers decision stands as fact, then no other court can interpret the contract to mean that the employer owes him any pay for notice. The cost of making such a claim would seem to be out of proportion with anything he could possibly gain from then getting notice pay.

Thanks for confirming the jurisdiction.

Before fees were payable for employment tribunals, this would almost certainly have been one of those cases that would have been settled. Most employers would have felt it was not worth the time and expense of defending.

As you say, if the OP's son has to pay full fees it probably rules out making a claim. However, it may be worth reading the following document to see if he can claim a remission.......

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex160a-from-07-october-eng.pdf

citykid5

Thanks all for the replys. Seems small claims would defiantly be a no go then ? As for the lateness and falling asleep , I would of thought it reasonable to expect warnings to be given? And the falling asleep as I said before my son did explain he was feeling unwell. I know it sounds like I'm pointlessly defending my sons actions,but you would expect an employer to adhere to it's own disaplinary procedure

Undervalued

citykid5 wrote: »

.......but you would expect an employer to adhere to it's own disaplinary procedure

Yes indeed and by not doing so they have left the door open to a claim.

The real problem, as it would have to be at an ET, is the fee which he won't get back even if he wins. If he can get full remission then it is perhaps worth a go.

citykid5

barba wrote: »

Falling asleep at work and being late multiple times and you're looking to take aim at the company!

I know what I'd be doing if it was son....

Funny as the company were full of praise for the work he did for them ( it ) until they employed a new manager