Friend sacked for gross misconduct - does he have a case for unfair dismissal?

BigBoss

Background

A friend has worked for a top energy company for 15 years. However, due to recent events in his life (home moving, beareavement, partner court case) his stress levels have been through the roof. In light of these stress levels, he had been spoken to about phone call manner before, but this was not a formal verbal or written warning. He was just told that if his call manner doesn't change he could be put on a plan. There have been no other disciplinary incidents over the 15 years.

The incident

After one antagonistic call, he hung up (or thought he had) and called the caller an expletive. The caller however still happened to hear the comment (he wasn't supposed to but my friend obviously hadn't disconnected the call properly).

After a brief disciplinary period (2-4 weeks), he was dismissed with immediate effect and asked to leave straight away. The grounds were "putting the business at risk".

There is an appeals process and he will be going through it. He is also with a union, who are helping.

Does he have any case at all for unfair dismissal? He has two children and as I said is going through some difficult circumstances at present, so I think the dismissal was a tad harsh.

Thanks in advance

agrinnall

No doubt there will be a debate about it but to my mind it was a harsh reaction but ultimately a reasonable one. His union will have more knowledge of the case than we ever will so they are better placed to come to a decision on how to proceed, but it doesn't sound like unfair dismissal to me. A Compromise Agreement for a reasonable reference may be the best he'll get out of it.

Undervalued

BigBoss wrote: »

Background

A friend has worked for a top energy company for 15 years. However, due to recent events in his life (home moving, beareavement, partner court case) his stress levels have been through the roof. In light of these stress levels, he had been spoken to about phone call manner before, but this was not a formal verbal or written warning. He was just told that if his call manner doesn't change he could be put on a plan. There have been no other disciplinary incidents over the 15 years.

The incident

After one antagonistic call, he hung up (or thought he had) and called the caller an expletive. The caller however still happened to hear the comment (he wasn't supposed to but my friend obviously hadn't disconnected the call properly).

After a brief disciplinary period (2-4 weeks), he was dismissed with immediate effect and asked to leave straight away. The grounds were "putting the business at risk".

There is an appeals process and he will be going through it. He is also with a union, who are helping.

Does he have any case at all for unfair dismissal? He has two children and as I said is going through some difficult circumstances at present, so I think the dismissal was a tad harsh.

Thanks in advance

Seems to me a clear cut case of gross misconduct.

The fact that he has two children is completely irrelevant. The "difficult circumstances" might just be a point in mitigation if they are serious and realistically affected normally excellent behaviour at work. However nearly everybody who finds themselves in any sort of trouble tends to trot out this kind of line so it would need to be something exceptional.

Sorry.

ohreally

Leave the advice to come from union officers this stage. There may be some manoeuvring at appeal stage so await the strategy.

sangie595

Harsh possibly. But not unfair dismissal. It wouldn't have really mattered whether the customer heard it or not - not the sort of thing you do in a workplace, and it could have been the same outcome if a colleague or manager had heard him.

Undervalued

sangie595 wrote: »

Harsh possibly. But not unfair dismissal. It wouldn't have really mattered whether the customer heard it or not - not the sort of thing you do in a workplace, and it could have been the same outcome if a colleague or manager had heard him.

Exactly.

Obviously the employer didn't have to take as firm a line as this but they are certainly quite entitled to.

Keep in mind that even if this went to an employment tribunal it is not their function to substitute their judgement for the employer's.

The tribunal would only consider if the conduct comes within the range that could reasonably be classed as gross misconduct (and it clearly does) and if dismissal is within the range of penalties a reasonable employer might consider (and it clearly is).

I think your friend's only hope is to ask the appeal to consider the mitigation explaining in detail "difficult circumstances" you mention.

BigBoss

Agrinall, Ohreally and Sangie, thank you for your comments.

I'll relay your words to my pal.

YouAsked

Gross misconduct/dismissal would probably be in the range of reasonable responses for what your friend did.

I feel for him - he sounds like he is having a rough time. At this point he's already been dismissed and so has nothing left to lose by going through the appeals process with the union.

While I don't think it is intrinsically (or legally!) unfair, it may be harsh - there may be scope to argue for reinstatement on the basis of various things (commitment to stress management programme/being on a performance plan etc). I think this depends on how "nice" the company is, how valued your friend is etc - essentially he'll be appealing to their good nature with promises of it not happening again rather than because the company has acted unfairly or inappropriately.

Bet he's glad he's in a union (although they don't have magic wands).

BigBoss

YouAsked wrote: »

essentially he'll be appealing to their good nature with promises of it not happening again rather than because the company has acted unfairly or inappropriately.

Yes, this is definitely the position I think it's worth taking.

iammumtoone

If I behaved liked that at work it would be instant dismal, I would expect that.

There are things that my workplace will allow that could be reason for warnings (ie lateness, not fully concentrating on task in hand) due to personal circumstances, I know as they have been lenient with me due to this, but what your friend did would be a step too far where I work.

Hopefully the union will be able to help and he may get off on a 'technicality' if the procedures have not been followed properly.

steampowered

Personally I would feel very comfortable bringing an Employment Tribunal claim on the grounds that it is not reasonable to regard that isolated incident as gross misconduct, particularly if (1) he had a 15 year career without this being raised before, and (2) the employer was made aware during the disciplinary process that he was going through a rough patch in his personal life rendering his conduct out of the ordinary.

On the face of it, it sounds to me that this case could could go either way. Certainly it sounds strong enough to pursue legally and justify a settlement.

The legal criteria for gross misconduct are below, you can reach your own conclusions:

The conduct must be so serious that it goes to the root of the contract, that is, the conduct must be repudiatory, entitling the employer to dismiss with immediate effect (Wilson v Racher [1974] ICR 428).
The conduct must be a deliberate and wilful breach of the contract or amount to gross negligence (Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09).