Breach of contract - Dismissal from employer ADVICE PLEASE

ljs_1985

Hi there

I’m looking for some advice at this stage regarding employment contracts. I am employed by a company as an it support manager, where I provide IT support to my colleagues. I also have a side business which at the moment is small and doesn’t take up any of my time during my contract hours with my employer.

I am currently suspended and facing dismissal as there is a clause in my contract which says that I must not carry out any other work without their prior consent as it may compete or interfere with their business, and may be done during working hours.

I failed to get consent before starting this business and that was a genuine oversight which I have apologised for however I’ve explained that there’s no competition and my side business only equates to around 2 hours of work per week which I do on evenings or weekend.

i have had 2 meetings with them whilst they investigate and they are suggesting that I do work on my own business during work hours, the reason for this conclusion is that 4 months ago I made a social media post at 3pm on my business account mentioning that I’d done some work for my side business. I explained to them that just because the post was at 3pm it doesn’t mean I was doing the work at 3pm (I wasn’t). They then mentioned that they can see from a post that I have t shirts made with my company name on them and that this suggests my business is larger than I’m saying it is (it isn’t).

They now have 10 days to get back to me with their decision but I’m sure they’re going to dismiss me under breach of contract for not getting their permission first. I just wondered if anyone has any idea of whether this seems fair. I do understand that my contract clearly says I should have got permission first, which I accept I am in the wrong for. However, had I got the permission first I think it would have been accepted as the side business doesn’t use my working time with my employer, and isn’t a business in competition with them. Therefore could the still fire me simply for not telling them, even though if I had told them it would have been ok?

Undervalued

ljs_1985 said:

Hi there

I’m looking for some advice at this stage regarding employment contracts. I am employed by a company as an it support manager, where I provide IT support to my colleagues. I also have a side business which at the moment is small and doesn’t take up any of my time during my contract hours with my employer.

I am currently suspended and facing dismissal as there is a clause in my contract which says that I must not carry out any other work without their prior consent as it may compete or interfere with their business, and may be done during working hours.

I failed to get consent before starting this business and that was a genuine oversight which I have apologised for however I’ve explained that there’s no competition and my side business only equates to around 2 hours of work per week which I do on evenings or weekend.

i have had 2 meetings with them whilst they investigate and they are suggesting that I do work on my own business during work hours, the reason for this conclusion is that 4 months ago I made a social media post at 3pm on my business account mentioning that I’d done some work for my side business. I explained to them that just because the post was at 3pm it doesn’t mean I was doing the work at 3pm (I wasn’t). They then mentioned that they can see from a post that I have t shirts made with my company name on them and that this suggests my business is larger than I’m saying it is (it isn’t).

They now have 10 days to get back to me with their decision but I’m sure they’re going to dismiss me under breach of contract for not getting their permission first. I just wondered if anyone has any idea of whether this seems fair. I do understand that my contract clearly says I should have got permission first, which I accept I am in the wrong for. However, had I got the permission first I think it would have been accepted as the side business doesn’t use my working time with my employer, and isn’t a business in competition with them. Therefore could the still fire me simply for not telling them, even though if I had told them it would have been ok?

As you accept yourself, you were clearly in breach of contract by not telling them. It is largely irrelevant that you think they would have agreed. However they may not have agreed. If that decision was contrary to your contract (which may be debatable) to the point that they were unreasonably restricting you, then you could have disputed that point with them if necessary by taking legal action.

Also worth noting "compete or interfere with their business" can mean a variety of things. Obviously it can mean taking business away from your main employers but it can also mean diverting your energy and focus away from your work. Posting about you side business during (presumably) working hours rather makes that point!

So, as I see it, this is certainly misconduct. Whether it is gross misconduct to the point of warranting dismissal is perhaps debatable. How long have you worked for you main employer?

ljs_1985

Thanks for your reply and yes i totally Understand that i'm in the wrong for not telling them. Also understand the point you've made about my interpretation of 'compete or interfere' being different to theirs so thanks for that.

I've worked with them for 4 1/2 years and never had any negative feedback about my performance or attendance and i can honestly say that other than one lunch hour i've never done any private work during my 9-5 job. Again, in hindsight, posting on social media during working hours wasn't wise, but the post doesn't say that i was with a private customer any isn't evidence that i was doing any private work at that exact time in question. I'd imagine if i'd posted something about my weekend or personal life at 3pm this wouldn't have been an issue. 

I guess it seems as though the bottom line is that yes, i have breached my contract and that yes, this is misconduct. If i am fired do i still have the right to go down the unfair dismissal route if i've breached contract or does that immediately make me unable to?

Undervalued

ljs_1985 said:

Thanks for your reply and yes i totally Understand that i'm in the wrong for not telling them. Also understand the point you've made about my interpretation of 'compete or interfere' being different to theirs so thanks for that.

I've worked with them for 4 1/2 years and never had any negative feedback about my performance or attendance and i can honestly say that other than one lunch hour i've never done any private work during my 9-5 job. Again, in hindsight, posting on social media during working hours wasn't wise, but the post doesn't say that i was with a private customer any isn't evidence that i was doing any private work at that exact time in question. I'd imagine if i'd posted something about my weekend or personal life at 3pm this wouldn't have been an issue. 

I guess it seems as though the bottom line is that yes, i have breached my contract and that yes, this is misconduct. If i am fired do i still have the right to go down the unfair dismissal route if i've breached contract or does that immediately make me unable to?

You could still claim unfair dismissal. Whether you would win or not is another matter....
To dismiss fairly in law an employer must....

Attempt to conduct a fair investigation
then
Hold a reasonable belief that the misconduct took place
and
Dismissal must fall within the range of responses a reasonable employer might choose

So, they are not expected to have the investigative skills of Inspector Morse, nor have the legal knowledge of a High Court Judge. A "reasonable belief" is a fairly low standard of proof, maybe not even quite 50% sure.
It doesn't matter that some (or even many) employers may have been more lenient. Harsh but fair is perfectly OK legally. Completely over the top is not!

Finally, even if you were to win an UD case (which you may well), a tribunal can reduce the compensation, all the way down to zero in some circumstances, if they feel you contributed to your own misfortune. You clearly have to some extent at least.

getmore4less

Posting on your business social media account during main job working hours  is doing work for your side business, might only be a few seconds but it is work.
reasonable assumption is you were also reading the account, and may have done that on other occations..

getmore4less

 the reason for this conclusion is that 4 months ago I made a social media post at 3pm on my business account mentioning that I’d done some work for my side business

Not unknown for companies to find out you are doing a bit on the side or other things wrong that can be useful at any other convenient time.

They pull them out of the bag when they need to get rid and want to take the easy route that is cheap as no notice pay or redundancy.

Also do not rule out someone was out to get you.

eamon

So your employer (or one of your colleagues/customers) monitors social media looking for its employees posting during working hours. Thats big of them. If you want to remain there then if a hearing is called apologise etc and hope that is enough.

But you are an IT manager, tut tut.

TELLIT01

If we have the whole story the punishment seems severe.  However, posting on a business account for your private business during the hours of work was a stupid thing to do.  In fact, posting on any form of social media during work hours is a stupid thing to do, although I knew many who did it at the last place I worked - including managers.

oh_really

This may be the sword that you fall on however harsh.

Your employer can and will expect a duty of fidelity, that you will have a regard for their interests and you have a duty not to compete (this has been tested in court), and not to mention the contractual breach.

Mmills

Regarding the post at 3pm - can you just advise them that you had scheduled this post to post at that particular time?  Because that is what you did right?

ToxicWomble

Mmills said:

Regarding the post at 3pm - can you just advise them that you had scheduled this post to post at that particular time?  Because that is what you did right?

No - because that’s not what the OP said happened.
I really hope you aren’t suggesting the OP lies as that would be very silly and likely to make their case even worse