Dismissal or resign?

TELLIT01

Were the breaches deliberate because he/they didn't agree with the rules or accidental because they didn't fully understand the rules?  Were there multiple breaches?

anonymous112433

TELLIT01 said:

Were the breaches deliberate because he/they didn't agree with the rules or accidental because they didn't fully understand the rules?  Were there multiple breaches?

They knew the rules, they had training and there was no excuse for them not adhering to them. It's not a case of whether he is guilty or not. He is guilty and it was just the first breach.

When I spoke to him a short while ago, he actually sounds like he's not as stressed anuymore. He's gone into job application mode full on. Somewhat of a distraction from the stress.

Catplan

anonymous112433 said:

That clears it up. I guess we'll have to accept the dismissal. He's already started applying for new roles. Although the next step is figuring out how to explain to potential interviewers during the process, why he got dismissed.

Tell the truth, it will come out anyway in all probability. Better to be up front about it rather than it being a surprise further down the line.

anonymous112433

I just wanted to update this thread - who knows it might prove helpful to someone else in the future.

So as expected my brother and 2 other members of the team were dismissed with the right to appeal. After careful consideration all 3 decided to appeal because apparently 2 other members of staff had been pulled in for something else on the list of gross misconduct actions just 3 months ago, they were not dismissed. The case for the appeal was simple, there was no consistency in the discplinary hearing outcomes.

As a result the company had no leg to stand on, but my brother had lost faith in the company so has settled for some compensation and a positive reference. He has since found another position.

Takeaway_Addict

anonymous112433 said:

I just wanted to update this thread - who knows it might prove helpful to someone else in the future.

So as expected my brother and 2 other members of the team were dismissed with the right to appeal. After careful consideration all 3 decided to appeal because apparently 2 other members of staff had been pulled in for something else on the list of gross misconduct actions just 3 months ago, they were not dismissed. The case for the appeal was simple, there was no consistency in the discplinary hearing outcomes.

As a result the company had no leg to stand on, but my brother had lost faith in the company so has settled for some compensation and a positive reference. He has since found another position.

That doesn't mean they would have guaranteed winning the appeal- should no one ever be dismissed again based on your theory?

Glad your brother sorted himself out though

Brie

Well done for your brother managing to turn the situation around.  Hopefully he won't get into this kind of pickle again.

Jillanddy

anonymous112433 said:

I just wanted to update this thread - who knows it might prove helpful to someone else in the future.

So as expected my brother and 2 other members of the team were dismissed with the right to appeal. After careful consideration all 3 decided to appeal because apparently 2 other members of staff had been pulled in for something else on the list of gross misconduct actions just 3 months ago, they were not dismissed. The case for the appeal was simple, there was no consistency in the discplinary hearing outcomes.

As a result the company had no leg to stand on, but my brother had lost faith in the company so has settled for some compensation and a positive reference. He has since found another position.

I'm pleased he's found something else. But for the sake of other readers, actually he had no leg to stand on. The company may accept such an argument if they wish, but an employment tribunal would not. What may have been the outcome on another unrelated case has no bearing in law on the outcome of another disciplinary. In legal terms that argument has no validity.

Undervalued

Jillanddy said:

anonymous112433 said:

I just wanted to update this thread - who knows it might prove helpful to someone else in the future.

So as expected my brother and 2 other members of the team were dismissed with the right to appeal. After careful consideration all 3 decided to appeal because apparently 2 other members of staff had been pulled in for something else on the list of gross misconduct actions just 3 months ago, they were not dismissed. The case for the appeal was simple, there was no consistency in the discplinary hearing outcomes.

As a result the company had no leg to stand on, but my brother had lost faith in the company so has settled for some compensation and a positive reference. He has since found another position.

I'm pleased he's found something else. But for the sake of other readers, actually he had no leg to stand on. The company may accept such an argument if they wish, but an employment tribunal would not. What may have been the outcome on another unrelated case has no bearing in law on the outcome of another disciplinary. In legal terms that argument has no validity.

Indeed.

Only two factors are relevant.....

Does the employer have a reasonable belief that the employee was guilty of the alleged misconduct / gross misconduct?

and if so....

Is dismissal within the range of sanctions a reasonable employer may choose?

If the answer to both of these questions is yes then the dismissal will be fair in law.

anonymous112433

Undervalued said:

Does the employer have a reasonable belief that the employee was guilty of the alleged misconduct / gross misconduct?

and if so....

Is dismissal within the range of sanctions a reasonable employer may choose?

Yes & yes are the answers.

However as this whole situation developed and office gossip started to spread it was becoming clearer that management & to an extent HR was guilty of treating people and incidents with different level of severity. I did ask him to just forget it and move on but the other 2 guys and member of his former colleagues felt very strongly about the double standards.

Jillanddy

anonymous112433 said:

Undervalued said:

Does the employer have a reasonable belief that the employee was guilty of the alleged misconduct / gross misconduct?

and if so....

Is dismissal within the range of sanctions a reasonable employer may choose?

Yes & yes are the answers.

However as this whole situation developed and office gossip started to spread it was becoming clearer that management & to an extent HR was guilty of treating people and incidents with different level of severity. I did ask him to just forget it and move on but the other 2 guys and member of his former colleagues felt very strongly about the double standards.

But they aren't double standards. The fact is that no two circumstances are exactly the same. All "gross misconduct" is not of equal import, even if it all has the same wording attached, just as no other disciplinary incidents are the same - you could get a final warning and it be merited, when someone else gets a first warning for exactly the same thing. That is why tribunals refuse to replace their own judgement with the employers, and instead rely on "reasonableness" as the test. 

For example - and entirely hypothetically - there is a process for locking up the building and failure to do so is potentially gross misconduct. Employee A has never done it before but has been shown how to do it - they make a mistake but get a final warning for putting security at risk. Employee B has done it 200 times before and was careless - they get dismissed. The same mistake, at different times, but different outcomes. In law this is fair. In both cases the employer would have been reasonable to dismiss, but in one case they decided that circumstances suggested a different outcome. It's not "playground fair" but it is legally fair. Treating people and incidents differently is legally fair because people and incidents ARE different. Tribunals only uphold judgements where people are treated differently for no good reason in respect of the same incident. Office gossip doesn't decide what is fair. And actually, neither do tribunals.