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

Helvetica_Van_Buren

sangie595 wrote: »

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.

Maybe 'defense' was the wrong term.

To be clear: what I meant was unions are good at representing those in situations the OP's 'friend' finds themselves in - rightly or wrongly.

I thought it was clear from the rest of my comment that I am of the position that the behaviour described is really not acceptable and I consider the gross misconduct charge to be just.

sangie595

Helvetica_Van_Buren wrote: »

Maybe 'defense' was the wrong term.

To be clear: what I meant was unions are good at representing those in situations the OP's 'friend' finds themselves in - rightly or wrongly.

I thought it was clear from the rest of my comment that I am of the position that the behaviour described is really not acceptable and I consider the gross misconduct charge to be just.

I wasn't questioning your opinion. Just emphasising the wording for the OP. Given that one poster appears to think there is a "defence". In the end, the friend will have to do what they must, but I would hate to see them get into a bigger mess than the one they are already in. As I pointed out before, getting dismissed is not the worst thing that can happen. It is perfectly possible to make things worse if you aren't careful !

steampowered

Undervalued wrote: »

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.

Hi - no, it is correct. The basic award is a fixed amount calculated according to a fixed statutory formula.

I take the point that there are certain limited circumstances in which it can be reduced - but not under a Polkey reduction. You appeared to be talking about Polkey reductions earlier in this thread where you were talking about technicalities. The cases are very clear that Polkey reductions only apply to the compensatory element of unfair dismissal awards, not the basic award element.

I suppose we are not going to agree on this, I've made my reasoning clear so others can draw their own conclusions.

The only point I would strongly emphasise once again for the benefit of the Op is that 'gross' misconduct is something much, much worse than ordinary misconduct. In legal terms the word 'gross' has a very specific, very restrictive meaning. It used to be the case that gross misconduct had to be something deliberate; these days you can get away with showing extremely serious negligence; but a showing of regular negligence is simply not enough.

The cases which have reached Tribunal are strict on this because gross misconduct dismissals are instant and deprive employees of their basic right to receive notice. In this case the employee was negligent, but he did not act deliberately and I personally am not convinced he was grossly negligent within the very strict meaning of that word.

Those who are unsure can read the Employment Tribunal's thoughts on this for themselves in the leading judgment on this issue at http://www.bailii.org/uk/cases/UKEAT/2009/0032_09_1712.html, particularly around paragraph 113, and reach their own conclusions.

YouAsked

steampowered wrote: »

The cases which have reached Tribunal are strict on this because gross misconduct dismissals are instant deprive employees of their basic right to receive notice. In this case the employee was negligent, but he did not act deliberately and I personally am not convinced he was grossly negligent within the very strict meaning of that word.

I'm as airy fairy as they come, but how did he not act deliberately? He was given informal warnings and then he chose to say what he said.

steampowered

YouAsked wrote: »

I'm as airy fairy as they come, but how did he not act deliberately? He was given informal warnings and then he chose to say what he said.

I was thinking more that he forgot to end the call properly, which I perceived as careless but not deliberate.

YouAsked

steampowered wrote: »

I was thinking more that he forgot to end the call properly, which I perceived as careless but not deliberate.

But if he hadn't said what he said, failing to end the call properly would have been neither here not there...



All a lot of ifs and buts - would be good to hear a resolution to this one, one way or another, and what the union's advice was.

MacMickster

steampowered wrote: »

I was thinking more that he forgot to end the call properly, which I perceived as careless but not deliberate.

I don't think that is in any way relevant. The gross misconduct element is due to making a derogatory remark about a customer of the business. The fact that, due to his oversight, the customer also heard the derogatory remark is just the icing on the cake. The gross misconduct was actually making the remark in the first place.

Undervalued

steampowered wrote: »

Hi - no, it is correct. The basic award is a fixed amount calculated according to a fixed statutory formula.

I take the point that there are certain limited circumstances in which it can be reduced - but not under a Polkey reduction. You appeared to be talking about Polkey reductions earlier in this thread where you were talking about technicalities. The cases are very clear that Polkey reductions only apply to the compensatory element of unfair dismissal awards, not the basic award element.

I suppose we are not going to agree on this, I've made my reasoning clear so others can draw their own conclusions.

The only point I would strongly emphasise once again for the benefit of the Op is that 'gross' misconduct is something much, much worse than ordinary misconduct. In legal terms the word 'gross' has a very specific, very restrictive meaning. It used to be the case that gross misconduct had to be something deliberate; these days you can get away with showing extremely serious negligence; but a showing of regular negligence is simply not enough.

The cases which have reached Tribunal are strict on this because gross misconduct dismissals are instant and deprive employees of their basic right to receive notice. In this case the employee was negligent, but he did not act deliberately and I personally am not convinced he was grossly negligent within the very strict meaning of that word.

Those who are unsure can read the Employment Tribunal's thoughts on this for themselves in the leading judgment on this issue at http://www.bailii.org/uk/cases/UKEAT/2009/0032_09_1712.html, particularly around paragraph 113, and reach their own conclusions.

No, you jumped to the wrong conclusion. If you read the thread you will see that I never even mentioned Polkey.

You on the other hand said that the basic award was fixed by statute and could not be reduced. That is not correct.

steampowered

Undervalued wrote: »

No, you jumped to the wrong conclusion. If you read the thread you will see that I never even mentioned Polkey.

You on the other hand said that the basic award was fixed by statute and could not be reduced. That is not correct.

You misunderstood my post. The point is that the calculation is made according to a fixed statutory formula set out in the Employment Rights Act 1996. I didn't say that amount can never be reduced for contributory fault.

You referred to the approach of Tribunals to minor technical errors. Reductions to unfair dismissal awards, where the reason for the unfair dismissal finding are minor procedural errors, are Polkey reductions, hence why I started talking about Polkey. As you were correctly advised Polkey reductions are not made to the basic award.

Anyway, it doesn't really matter who said what when. The only part of this which I would like to clarify for the benefit of those reading are your assertions that the only thing which could possibly be contested is notice pay.

Reductions to Tribunal awards - whether Polkey reductions of the compensatory element of the award, or reductions of the basic award for contributory fault - are almost invariably partial reductions rather than a reduction of the whole thing. I accept there would be reductions but, if an unfair dismissal finding was made, not reductions of 100%.

As you said in your posts above, reductions can be made if the employee is 'partly' to blame - notice the word 'partly'. Based on the employee's 15 years' service, even a heavy 50% reduction would leave the Op with 11.25 weeks' pay on the basic award alone (on top of 12 weeks' notice pay and any compensatory award).

FBaby

As they choose to dismiss for gross misconduct, I think they can be challenged. Gross misconduct is a pretty high standard and is usually reserved for things like theft or assault.

Surely this alone is totally wrong. Gross misconduct is absolutely not only reserved for things like theft or assault and not sure why you believe it is. Gross misconduct can be triggered for breach of confidentiality, loss of trust, or putting the company in disrepute.

Tesco policy is a perfect example. It cites a serious breach of their code of business conduct (page 8). Their code of business conduct then cites 'unacceptable behaviour'.

https://cdn.ourtesco.com/2016/04/Disciplinary-Policy-April-16.pdf

I think you are way of the mark if you think that what OP's friend did couldn't be considered gross misconduct.