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

FBaby

Just meant to add, what would be most helpful to OP's friend is whether the company has a policy/code of business conduct that mentions inappropriate behaviour because that if they don't, that could be their best defense.

steampowered

FBaby wrote: »

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.

I said gross misconduct is "usually reserved for things like theft or assault" - not that it can only ever be those two examples!

The Tesco policy you posted is very clear on this - it correctly says "Gross Misconduct is conduct so severe that even a oneoff incident could result in your dismissal (without notice) from the Company"

In this regard I quote from the leading court judgment on gross misconduct, which explains what gross misconduct means legally:

Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee: see Wilson v Racher [1974] ICR 428, CA per Edmund Davies LJ at page 432 (citing Harman LJ in Pepper v Webb [1969] 1 WLR 514 at 517):

"Now what will justify an instant dismissal? - something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract"

and at page 433 where he cites Russell LJ in Pepper ( page 518) that the conduct "must be taken as conduct repudiatory of the ontract justifying summary dismissal." In the disobedience case of Laws v London Chronicle (indicator Newspapers) Ltd [1959] 1 WLR 698 at page 710 Evershed MR said:

"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.

It is not obvious to me that the employee's conduct falls within this test. The employee's conduct doesn't really have the deliberate character that you typically see in gross misconduct cases and which the case law suggests is required for a finding of gross misconduct.

Personally I see this as a 50/50 case that could go either way, and in pure financial terms worth going to see a lawyer about given the employee's length of service.

ryan121

People are ignoring how it affects other employees as well. It's not very nice sitting near someone who is aggressive and constantly losing their temper because of personal issues. Are other employees who feel uncomfortable supposed to just tolerate that?

What he did is clearly gross misconduct as it brings the company into disrepute and has probably lost them at least one customer. Someone who can't control their temper when dealing with customers is not fit to be in a customer service job.

Yes, he has personal issues but any employer will tell you that you are there to do the job you signed up for.

[Deleted User]

Equally it's not fun doing back 2 back calls to 30 seconds wrap up and less. Unable to leave your seat. Some calls of which generated by your colleagues not working quicker-
For these people life seems a party - they have their mobiles out, they take breaks in addition to the standard lunch, they can get up from their seat, they didn't even stop when an interviewee sat next to me and questioned as to how come I was the only one on our bank taking calls queuing - afraid even they learnt where their bread was best buttered though and asked to move accordingly. Wouldn't you!

Take a job where you are on the phones and then proclaim you are deaf, yeah I've seen it all.

Can understand why people swear really. Though I think I quit! is far better.

Money_saving_maniac

steampowered wrote: »

I said gross misconduct is "usually reserved for things like theft or assault" - not that it can only ever be those two examples!

The Tesco policy you posted is very clear on this - it correctly says "Gross Misconduct is conduct so severe that even a oneoff incident could result in your dismissal (without notice) from the Company"

In this regard I quote from the leading court judgment on gross misconduct, which explains what gross misconduct means legally:

Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee: see Wilson v Racher [1974] ICR 428, CA per Edmund Davies LJ at page 432 (citing Harman LJ in Pepper v Webb [1969] 1 WLR 514 at 517):

"Now what will justify an instant dismissal? - something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract"

and at page 433 where he cites Russell LJ in Pepper ( page 518) that the conduct "must be taken as conduct repudiatory of the ontract justifying summary dismissal." In the disobedience case of Laws v London Chronicle (indicator Newspapers) Ltd [1959] 1 WLR 698 at page 710 Evershed MR said:

"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.

It is not obvious to me that the employee's conduct falls within this test. The employee's conduct doesn't really have the deliberate character that you typically see in gross misconduct cases and which the case law suggests is required for a finding of gross misconduct.

Personally I see this as a 50/50 case that could go either way, and in pure financial terms worth going to see a lawyer about given the employee's length of service.

Sorry you're wrong, this is well within the scope of gross misconduct, given the nature of the industry. Call centre type work is very sensitive to this kind of thing. You need to bear that in mind.
Also there is a big difference between being dismissed for gross misconduct and instant or summary dismissal which you don't seem to get.

His best hope is that the appeal gives him a final written instead when he presents the mitigating factors.