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

steampowered

As has been explained even if (and that is a big if) this is "only" misconduct and not gross then all that would lead to is notice pay.

OK, in this case that would be 12 weeks pay so I suppose that might make it worth the gamble.

If the Tribunal concludes that the employer was not entitled to dismiss for 'gross misconduct', but could have dismissed with notice for basic conduct, that would lead to a finding of (procedural) unfair dismissal.

In this circumstance the Op would be entitled to notice pay + basic award + compensatory award.

I agree that the compensatory award might be heavily cut back under a Polkey reduction, but the basic award is fixed by statute.

Given the Op's length of service we are talking about potentially 12 weeks notice pay + 22.5 weeks' pay under a basic award (depending on the age of the Op). That's a lot of money even if the compensatory element of the award is reduced to zero.

steampowered

A few points I feel it necessary to respond to.

sangie595 wrote: »

The length of service or previous good conduct of an employee is not something a tribunal is permitted to take into account. Mitigation is purely about the employers hearing of the case.

I refer you to the ACAS handbook on disciplinary matters, which you can read at http://www.acas.org.uk/media/pdf/r/2/D_G_Booklet_8-08_for_web.pdf. This is very clear that length of service is a relevant consideration before deciding on the appropriate disciplinary penalty.

I quote from the handbook: What should be considered before deciding any disciplinary penalty? When deciding whether a disciplinary penalty is appropriate and what form it should take, consideration should be given to: [...] the employee’s disciplinary record, general work record, work experience, position and length of service

Even if there hadn't been previous warnings about conduct, which there were - they may not have been disciplinary warnings, but they were still warnings and part of the record.

Point taken, although we don't know exactly what the warning was for. A warning given a long time about something not really relevant wouldn't be a big issue.

The test of the tribunal is whether the outcome is one which a reasonable employer might consider. The fact is that any disciplinary outcome falls within a spectrum - one employer might have given a final warning, another might dismiss with notice, another dismiss for gross misconduct. Each of these may be deemed with that spectrum of "reasonable outcomes". So that is the only test to be applied - the tribunal cannot substitute its own judgement for that of the employer. And under that test, yes, I would say that dismissal for gross misconduct definitely falls within that spectrum.

I agree entirely on the legal test. But I have a different opinion on the factual conclusion you have reached.

I am not convinced that a finding of gross misconduct is within the reasonable range of responses for forgetting to turn a microphone off.

I emphasise that gross misconduct is a very high standard. It normally needs something deliberate such as theft or assault. I quote from the leading case on this:

Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee [...] "the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions."So the conduct must be a deliberate and wilful contradiction of the contractual terms.

Alternatively it must amount to very considerable negligence, historically summarised as "gross negligence".

Further, I cannot see any practical sense as to why any good lawyer would want to take on the case, because, even in the very unlikely event that they won, they wouldn't have very much to win! There is no doubt that swearing at a customer in their hearing, whether a mistake or not, is within the spectrum of outcomes for a tribunal to consider. Once again, it is still not up to the tribunal to make their own decision as to the mitigation. But let's assume, in your very unlikely scenario, they win. They would only be able to claim an award of notice pay unpaid, because the "backstop" position is that dismissal is definitely within that range of outcomes a reasonable employer would consider. To what extent did they contribute to their own dismissal? That would be 100% because it wouldn't have happened if not for their own actions. Apply Polkey deductions, throw in the cost of the lawyer, and the tribunal fees, and it is a negative balance! And that is before you add on the "reference factor" which will pretty much make them unemployable as soon as the story is told.

As mentioned in my last post, Polkey reductions are only applied to the compensatory element of an unfair dismissal award, not to the basic award. Given this employee's length of service we are talking about a substantial sum of money even if the compensatory award is zero.

I would be inclined to consider that a good outcome at this stage would be an agreed reference in light of previous good service and mitigation. It's a high price to pay for one single incident - but such things often are just one single incident. But "lesson learned", with a reasonably decent reference, many employers would be inclined to accept that the explanation of the circumstances is worth taking a risk on. It isn't very likely that he would do it again.

Personally I've settled employment disputes for less meritorious cases than this. In my view a good outcome would be settling the case for modest compensation plus an agreed reference.

Undervalued

steampowered wrote: »

I agree that the compensatory award might be heavily cut back under a Polkey reduction, but the basic award is fixed by statute.

Given the Op's length of service we are talking about potentially 12 weeks notice pay + 22.5 weeks' pay under a basic award (depending on the age of the Op). That's a lot of money even if the compensatory element of the award is reduced to zero.

No, the basic award can also be reduced if the tribunal considers him to be partly responsible for his dismissal.

https://www.citizensadvice.org.uk/work/problems-at-work/employment-tribunals-from-29-july-2013/employment-tribunals-valuing-a-claim/employment-tribunals-basic-award/employment-tribunals-how-to-work-out-your-basic-award-if-you-are-claiming-unfair-dismissal/


There is little doubt that is the case so the only likely benefit, as Sangie and I have said, is the notice pay.

OK, still 12 weeks pay plus the employer would have significant costs in fighting so that may encourage them to settle.

Or, they may take the view that it is money well spent if it sends a message to other employees.

sangie595

steampowered wrote: »

If the Tribunal concludes that the employer was not entitled to dismiss for 'gross misconduct', but could have dismissed with notice for basic conduct, that would lead to a finding of (procedural) unfair dismissal.

In this circumstance the Op would be entitled to notice pay + basic award + compensatory award.

I agree that the compensatory award might be heavily cut back under a Polkey reduction, but the basic award is fixed by statute.

Given the Op's length of service we are talking about potentially 12 weeks notice pay + 22.5 weeks' pay under a basic award (depending on the age of the Op). That's a lot of money even if the compensatory element of the award is reduced to zero.

Sorry, but your whole scenario depends upon a tribunal doing exactly what it cannot - replacing the employers judgment with their own. It simply will not happen. The OP has already lost their job. Gambling real money on a tribunal based on this advice would be most unwise. Which is why the union won't be paying for such a risk, so it will be the OP who will have to pay.

Quite ignoring the fact that, sorry, but in anyone's interpretation of the works, accident or not, you do not swear at or about the employers customers. Yes they "could" have dismissed with notice. Yes, they could have not dismissed at all. But the action of the OPs friend quite definitely fell within the range of gross misconduct if the employer considers it so. Any reasonable employer would certainly consider it possible, even if they chose to view it otherwise.

sangie595

I'm not going to respond at length. I think the main points have been covered. We do not agree. But I am going to pick up on your comment that you have settled similar cases. In the first instance, anyone can claim that - it doesn't mean it is true. And gambling a great deal of money on anonymous posts on the internet is unwise. Secondly, a settlement is not a win at a tribunal. Before that settlement occurred the OP will have to make a claim which costs money. And in the employers does they will immediately apply for strikeout. And I will lay bets they would win.

steampowered

Undervalued wrote: »

No, the basic award can also be reduced if the tribunal considers him to be partly responsible for his dismissal.

There is little doubt that is the case so the only likely benefit, as Sangie and I have said, is the notice pay.

That's a different concept to Polkey and narrowly applied in practice. I'm not convinced the employer would get a reduction of the basic award.

I very much disagree that 12 weeks' notice pay is the only thing to fight for here. There is a substantial argument to be had on both the basic award and compensatory award.

If the Tribunal concluded that the employer was not entitled to dismiss without notice for gross misconduct and thus there has been an unfair dismissal, then even if the employee is shown to be partly to blame the employer would only get a partial reduction (such as a 25% or 50% reduction) at most, not a reduction of the entire basic award to zero.

Or, they may take the view that it is money well spent if it sends a message to other employees.

I think that's very unlikely. The employer in this case is a large energy company which must be dealing with employment disputes all the time.

steampowered

sangie595 wrote: »

And in the employers does they will immediately apply for strikeout. And I will lay bets they would win.

It is extremely difficult for employers to get a strike-out on factual issues Sangie. As you know, in a strike-out hearing the Tribunal is broadly required to assume that the facts pleaded by the claimant are true. The issues in this case are factual and factual issues typically go to full hearings.

I think there is more than enough here for the employee to raise a claim and get some proper legal advice. It isn't the strongest claim in the world but I feel it is very arguable.

If the Op does get some proper legal advice, it would be nice if the Op could let us know if the lawyers think there might be a case.

Helvetica_Van_Buren

This is clearly gross misconduct and I don't think the company has acted unreasonably.

Citing "stress levels" and "antagonistic phonecalls" is just clutching at straws.

I get that people mutter under their breath or away from awkward customers but the fact is the customer heard it, and that's simply not acceptable.

Everybody's fairness-o-meter is calibrated differently but ultimately people's opinion on fairness counts for nothing.

I've no doubt a union would make a good effort at justifying or excusing OP's friend's actions, but it was gross misconduct.

Undervalued

steampowered wrote: »

That's a different concept to Polkey and narrowly applied in practice. I'm not convinced the employer would get a reduction of the basic award.

I very much disagree that 12 weeks' notice pay is the only thing to fight for here. There is a substantial argument to be had on both the basic award and compensatory award.

If the Tribunal concluded that the employer was not entitled to dismiss without notice for gross misconduct and thus there has been an unfair dismissal, then even if the employee is shown to be partly to blame the employer would only get a partial reduction (such as a 25% or 50% reduction) at most, not a reduction of the entire basic award to zero.

Well only a moment ago in post 22 you said

I agree that the compensatory award might be heavily cut back under a Polkey reduction, but the basic award is fixed by statute.

Which is wrong, like much of your other advice.

sangie595

Helvetica_Van_Buren wrote: »

This is clearly gross misconduct and I don't think the company has acted unreasonably.

Citing "stress levels" and "antagonistic phonecalls" is just clutching at straws.

I get that people mutter under their breath or away from awkward customers but the fact is the customer heard it, and that's simply not acceptable.

Everybody's fairness-o-meter is calibrated differently but ultimately people's opinion on fairness counts for nothing.

I've no doubt a union could put up a good defense but for now, it was gross misconduct.

I'd doubt it! A good mitigation, yes, possibly. But there is no defence. You do not swear at or about your customers, you do not swear in front of colleagues or management. And you do not swear after you have already been warned about your conduct! I cannot think of a single way of defending this behaviour. And I think that is where some people are getting lost in the debate. They are confusing defence with mitigation.