Unfair Dismissal - Opinions?

sportsarb

unforeseen wrote: »

It's a bit of a giveaway if the employer gets a ring tone rather than straight to ansaphone.

Couldn't the employee be at a service station, on the toilet, and not want to answer?

Undervalued

sportsarb wrote: »

Couldn't the employee be at a service station, on the toilet, and not want to answer?

Yes, they could. However, remember an employer only needs a reasonable belief that the misconduct has taken place. That is a great deal less than the criminal standard of proof.

In any case it is irrelevant in this case as the employee told his line manager he was driving when he answered!

Tron103

Hi all,

Again - thanks for the input! It's very interesting to see the varying views. I have suggested to seek some initial legal advice and interestingly a couple of lawyers are keen to take the case no-win-no-fee.

In terms of questions asked; no evidence was found in the previous investigation (two weeks prior) although the notes from the investigation said 'we believe you were at fault but have not found evidence to prove this' - this is despite someone else confirming that he was not even in the room at the time.

In terms of medical conditions, he suffers from dyslexia and no support has been offered despite multiple requests (there is evidence of this) and he also has evidence of work-related stress and anxiety over a period of >12 months. He stated in the investigation that he was feeling extremely anxious at the time of the incident and as a result, didn't rationally process in his mind the policy and a sensible response - he panicked and pressed answer. His LM was simply calling to ask where he was - no emergency.

The other cases I referred. One was a bus driver who was caught on camera exiting a stand and took both hands off the wheel to answer his phone - he was fairly dismissed. The other was an individual who was filmed holding his phone and talking whilst driving into work in his own car. He was deemed as being unfairly dismissed in part due to mitigating circumstances of long service and a history of stress.

It's really interesting seeing the mix of opinions and reiterates my thoughts that it's probably a borderline case - depends on the view taken. It's very clear that he broke policy and he has admitted that but I'm not sure it's a reasonable response to summarily dismiss (without notice). I'm sure others think differently though!

polgara

The issue isn’t whether you or him think it was a reasonable response - it would be for a judge to determine whether it was within the band of reasonable responses.

Give it a try if you want but don’t be surprised if it goes nowhere.

steampowered

polgara wrote: »

The issue isn’t whether you or him think it was a reasonable response - it would be for a judge to determine whether it was within the band of reasonable responses.

Yes, but remember this is a gross misconduct case. Not a case where the person got dismissed for ordinary misconduct following a proper disciplinary process.

The test for gross misconduct is much much stricter, so gets much heavier scrutiny.

Remember that gross misconduct means dismissing someone without even giving them notice or pay in lieu of notice - it is reserved for fundamental breaches of contract.

Undervalued

steampowered wrote: »

Yes, but remember this is a gross misconduct case. Not a case where the person got dismissed for ordinary misconduct following a proper disciplinary process.

The test for gross misconduct is much much stricter, so gets much heavier scrutiny.

Remember that gross misconduct means dismissing someone without even giving them notice or pay in lieu of notice - it is reserved for fundamental breaches of contract.

Which, at least arguably, this is. The "offence" is specifically spelt out in the contract which also says it may result in "up to dismissal".

The only arguments I can see for a lesser penalty is that it was (apparently) hands free and he was (apparently) stationary in traffic at the time. He presumably has no evidence to back up either of these claims. The second point is in any case of very limited help. Had the phone not been hands free he would have been breaking the law unless he was actually parked.

steampowered

Undervalued wrote: »

Which, at least arguably, this is. The "offence" is specifically spelt out in the contract which also says it may result in "up to dismissal".

The only arguments I can see for a lesser penalty is that it was (apparently) hands free and he was (apparently) stationary in traffic at the time. He presumably has no evidence to back up either of these claims. The second point is in any case of very limited help. Had the phone not been hands free he would have been breaking the law unless he was actually parked.

I take your point, but it sounds to me like the employer is onto a losing argument if they try to say this is gross misconduct.

Case law makes it clear that gross misconduct is reserved for things like fraud; physical violence; damage to property.

Case law also tells us that gross misconduct almost always requires an element of intent - negligence (even serious negligence) is generally not enough.

In employment contracts it is usually necessary to spell out precisely that something is going to be treated as gross misconduct. Saying "up to and including dismissal" is not clear enough. Furthermore, the policy only says "up to and including dismissal" - regular dismissal requires paying out notice. There is nothing in that policy to suggest a gross misconduct dismissal (i.e. forfeiting notice pay, forfeiting the need for the employer to go through a proper disciplinary procedure etc.) is the appropriate or normal sanction.

Undervalued

steampowered wrote: »

I take your point, but it sounds to me like the employer is onto a losing argument if they try to say this is gross misconduct.

Case law makes it clear that gross misconduct is reserved for things like fraud; physical violence; damage to property.

Case law also tells us that gross misconduct almost always requires an element of intent - negligence (even serious negligence) is generally not enough.

In employment contracts it is usually necessary to spell out precisely that something is going to be treated as gross misconduct. Saying "up to and including dismissal" is not clear enough. Furthermore, the policy only says "up to and including dismissal" - regular dismissal requires paying out notice. There is nothing in that policy to suggest a gross misconduct dismissal (i.e. forfeiting notice pay, forfeiting the need for the employer to go through a proper disciplinary procedure etc.) is the appropriate or normal sanction.

I take your point too.

However, the employee is "guilty" of at least misconduct (by their own admission) so has at least contributed to their dismissal.

If a tribunal took you view that it wasn't gross misconduct that would get the employee their notice pay. Whether they would get much compensation beyond that is doubtful as it would almost certainly be reduced (at least) as a result of their conduct which was a clear breach of the firm's rules.