Dismissal or resign?

TELLIT01

Even with gross misconduct there can be levels of seriousness or mitigating circumstances.  Just because one person was found guilty of an offence on the 'gross misconduct list' but allowed to keep their job, it does not mean that every other case must be treated in the same way.

I was actually accused of gross misconduct because personal information was sent to the wrong address.  I had sent the information but was under so much pressure from a senior manager to get the stuff out the door I was not given the opportunity to check that the address on the files I had was still current.  Fortunately for me, my immediate manager had been there at the time and confirmed what I said.  Therefore I was guilty but mitigating factors meant it wasn't recorded as such.  I actually suspect that was more to protect the senior manager involved than for my sake.

Thrugelmir

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.

Office gossip is a sure way of receiving misinformation. Not a source to be relied on. 

Undervalued

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.

Which they are legally entitled to do (providing that the reason is not race, gender, religion etc)!

OK, in this case the internal appeal was upheld which is good for them and also fairly unusual.

What is being pointed out here is that, had the appeal been rejected and the employees proceeded to an employment tribunal, it is very unlikely that they would have won.

General_Grant

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.

Thanks for coming back with an update.

I hope that being "positive" (whatever that means) will not be misleading to a potential new employer.

Takeaway_Addict

General_Grant 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.

Thanks for coming back with an update.

I hope that being "positive" (whatever that means) will not be misleading to a potential new employer.

Providing its true it doesn't matter

Undervalued

Takeaway_Addict said:

General_Grant 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.

Thanks for coming back with an update.

I hope that being "positive" (whatever that means) will not be misleading to a potential new employer.

Providing its true it doesn't matter

Actually it does.

A reference must be both true and not deliberately misleading and that duty is due equally to both parties.

It is sometimes possible to write a reference in such a way as to give a completely misleading impression (either way) without saying one word that is untrue! Successful legal action has been taken over this in the past.

oh_really

It's good to get little victory's on employment matters. Onwards and upwards and don't look back.

anonymous112433

Thanks for coming back with an update.

I hope that being "positive" (whatever that means) will not be misleading to a potential new employer.

By positive we actually the opposite of a negative reference. Had the dismissal gone through they would have said that in the reference, but now they'll just include the following 4 things:

Position, salary, dates of employment and reason for leaving as resignation.

Apparently this is what they do as standard for all references.

For his new role, they haven't asked for referee details yet, they may do later. But he has a contract which he's signed and he starts on Monday.

Undervalued

anonymous112433 said:

Thanks for coming back with an update.

I hope that being "positive" (whatever that means) will not be misleading to a potential new employer.

By positive we actually the opposite of a negative reference. Had the dismissal gone through they would have said that in the reference, but now they'll just include the following 4 things:

Position, salary, dates of employment and reason for leaving as resignation.

Apparently this is what they do as standard for all references.

For his new role, they haven't asked for referee details yet, they may do later. But he has a contract which he's signed and he starts on Monday.

Well I would describe that as a neutral reference. Probably the best he is likely to get under the circumstances.

The problem always is how they reply to any follow up questions. A flat refusal to answer any questions is normally taken (rightly or wrongly) as having nothing good to say and / or that there is a formal settlement agreement in place which prohibits anything else being said.

There is no easy answer under these circumstances and as has been said it is very unlikely he would have won at a tribunal had the internal appeal been rejected.

Reginald74

There is cost in money and time (which in the end are the same thing) in defending a tribunal. They likely settled to avoid that. There's no indication whether they felt they would win or not.