Unfair dismissal?

Foxborn

I was recently dismissed for gross misconduct for not locking a door correctly - after working there for 5 years I have locked the door countless times without fail. If another staff member locks the door, I even check it to make sure they've done it correctly. I take the security of the premises seriously but on this particular occasion it appears I locked the door using the exact same method I use to lock another door. The door was closed and appeared locked, but it wasn't secure. I don't exactly know why I didn't lock it correctly, but I feel like the circumstances at work played a part in it.

A few days prior we had 2 staff members call in sick, 4 staff members on annual leave and my manager decided it was a good time to go on annual leave too (it wasn't prebooked, they just decided they wanted a few days off). This left us with only me and another staff member as key holders and if either one of us were to call in sick we would have to close or go against Working Time Regulations. My manager is supposed to organise cover from another site who can act as a key holder to prevent this from happening.

I wanted to call in sick myself due to bereavement reasons but felt obliged to work. We then had 3 more staff call in sick which resulted in me and 2 other staff members capable of working despite needing at least 4 staff working at the same time during most the day. We tried to change the rota and reduce the opening hours but our manager refused and told us to operate as normal. This then resulted in us working long shifts without a break and not getting at least 11 hours between shifts.

When I went to lock the doors, I was exhausted, stressed and worried about getting enough rest to function the next day (I was back in 9 hours).

The whole disciplinary procedure was then rushed and didn't follow the company policy nor Acas procedure. When I had my investigation I explained the whole situation. My disciplinary invite only had the date, time and location, and I didn't even have the minimum notice of 48 hours for the hearing which is company policy.

One staff member also told customers and staff that I was suspended and I had people constantly asking me about it. The same staff member then told people I had been dismissed.

Because it was rushed, it felt like I was only going to receive a warning or something and they wanted to get me back to work as soon as possible and not summary dismissal. The reasoning was that gross misconduct automatically equals summary dismissal. I feel like that was a predetermined decisions and the whole hearing was pointless. I understand not securing the premises is gross misconduct, but I do feel like summary dismissal was a bit harsh considering the circumstances. If I had completely forgot to lock it and I left it wide open I would understand. But at the time I genuinely thought I had locked it.

It was only until after I was dismissed that I was able to then start thinking more into it. There have been multiple times other staff have committed gross misconduct and no action was taken whatsoever. Even the staff member who told people I was suspended (which is a breach of confidentiality) had no action taken against them - they in fact got promoted.

A few months ago we had 2 male staff leave because they felt they were getting treated differently to the female staff. They were investigated for stupid reasons despite the female staff doing the exact same things. At the time I felt I was getting treated differently too but I decided to stay. Since I've been dismissed 2 more male staff have handed their notices in and I know the reason for one of them and that's because they felt they were getting treated differently too. There are now no male staff working there.

There were also rumors that I was unhappy with how my manager was managing the place, wasn't doing their job correctly and I was thinking of writing a grievance. More reason to want to get rid of me.

I don't think they have anything against male staff, they've hired male staff. But I do feel like they only use disciplinary action against male staff for unknown reasons.

I've appealed it, however even if the decision is overturned I feel like I wouldn't even want to go back and they would find even more valid reasons to get rid of me again.

JReacher1

The tiredness, sickness, bereavement although not pleasant for you are really irrelevant to this so wouldn’t focus too closely on that. I would also not mention the gender issue as again that is not relevant. 

If they have not followed their correct disciplinary procedures I would use that as grounds for appeal and then if rejected take them to an employment tribunal. 

74jax

I would profusely apologise and show how you have learnt from this experience.  State how you will conduct yourself in future so it doesn't happen again. 

I wouldn't really mention anything else personally.

You say you will leave, so start looking now, it's far easier to look and move jobs whilst in a job. 

Own_Worst_Enermy

I got the boot from somewhere a month after teeth were pulled out at a private cost dentist with their price tag to boot to stop an infection simply getting worse. I lost my earning but I was alright mate.

Today I watched the Employer go under. Not of my doing as much as anyone else they had actually upset.

Savvy_Sue

Are you in a union? I'd want to know their view. 

Undervalued

JReacher1 said:

The tiredness, sickness, bereavement although not pleasant for you are really irrelevant to this so wouldn’t focus too closely on that. I would also not mention the gender issue as again that is not relevant. 

If they have not followed their correct disciplinary procedures I would use that as grounds for appeal and then if rejected take them to an employment tribunal. 

Whilst the OP could do that, a failure to follow procedure will not in itself get much in the way of compensation.

Yes, if it would have taken longer to do it properly the OP would be awarded a few days pay to compensate for that. However if the dismissal itself would have been fair (in law) but for the procedure, any compensation for that would be reduced (a Polkey reduction) quite possibly down to zero. So, a technical win but little more. Obviously the firm might settle rather than have the hassle....

JReacher1

Undervalued said:

JReacher1 said:

The tiredness, sickness, bereavement although not pleasant for you are really irrelevant to this so wouldn’t focus too closely on that. I would also not mention the gender issue as again that is not relevant. 

If they have not followed their correct disciplinary procedures I would use that as grounds for appeal and then if rejected take them to an employment tribunal. 

Whilst the OP could do that, a failure to follow procedure will not in itself get much in the way of compensation.

Yes, if it would have taken longer to do it properly the OP would be awarded a few days pay to compensate for that. However if the dismissal itself would have been fair (in law) but for the procedure, any compensation for that would be reduced (a Polkey reduction) quite possibly down to zero. So, a technical win but little more. Obviously the firm might settle rather than have the hassle....

If there have been previous examples of people not locking the door and not subsequently being dismissed for gross misconduct then that would help demonstrate the  dismissal was unfair and I think impact would limit any Polkey reduction. Think the OP would get more than zero. 

Undervalued

JReacher1 said:

Undervalued said:

JReacher1 said:

The tiredness, sickness, bereavement although not pleasant for you are really irrelevant to this so wouldn’t focus too closely on that. I would also not mention the gender issue as again that is not relevant. 

If they have not followed their correct disciplinary procedures I would use that as grounds for appeal and then if rejected take them to an employment tribunal. 

Whilst the OP could do that, a failure to follow procedure will not in itself get much in the way of compensation.

Yes, if it would have taken longer to do it properly the OP would be awarded a few days pay to compensate for that. However if the dismissal itself would have been fair (in law) but for the procedure, any compensation for that would be reduced (a Polkey reduction) quite possibly down to zero. So, a technical win but little more. Obviously the firm might settle rather than have the hassle....

If there have been previous examples of people not locking the door and not subsequently being dismissed for gross misconduct then that would help demonstrate the  dismissal was unfair and I think impact would limit any Polkey reduction. Think the OP would get more than zero. 

"Help". Maybe marginally but not necessarily.

There is no direct requirement to treat all instances of similar misconduct in the same way.

To dismiss fairly in law an employer needs to make a reasonable (layman's) attempt to conduct a fair investigation. Form a "reasonable belief" that the misconduct took place. Finally dismissal would need to be within the range of sanctions a reasonable employer might choose. That is all the law requires.

Also, the OP says....

The whole disciplinary procedure was then rushed and didn't follow the company policy nor Acas procedure.

It is worth noting that there are no longer statutory ACAS "procedures" which must be followed. Only "guidelines".

As I said the employer would be expected to make a reasonable (layman's) attempt at conducting a fair process. Following the ACAS guidelines is certainly a safe(ish) way of doing so. However, it is not the only way and other, simpler, procedures can be perfectly fair in law.

JReacher1

I don’t agree. Think the OP has a reasonably strong case to take this to an employment tribunal if they fail the appeal. 

I don’t think an employment tribunal will agree what the OP did was gross misconduct (unless the door he left unlocked was a prison cell). 

Foxborn

Thank you for taking the time to reply.

There have been multiple times the doors have been left completely unlocked by other staff, but that was before the current manager. The past managers kicked off for obvious reasons, but none of them took disciplinary action because of how insecure the building is to begin with. Somebody trying to break in simply wouldn't even attempt the doors when there are obvious easier ways of entry. The alarm itself would deterrent somebody who stumbles across an unlocked door and anybody actually attempting to break in will do so regardless. Sadly there isn't any paper evidence of this, however I know the cleaners have come to work in the morning and found doors unlocked. I'm just unsure if they would give statements or not because I know they won't want to get anybody else in trouble, including themselves if they didn't actually report it.

My manager who initiated the disciplinary procedure constantly leaves their keys (including alarm fob) in insecure places where anybody can simply pick them up. This can be backed up by witnesses and CCTV but I don't think hypocrisy counts.

It's a bit difficult to research similar cases as mine because my outcome letter states I was dismissed for "allegations from invite letter relating to failure to secure premises". That was the reason I got investigated, my disciplinary invite states nothing. I'm pretty certain I was dismissed for breaching a policy and not my actual action itself.

I did find a tribunal case with the company and it was regarding something else, but the case included information about somebody having a disciplinary for breaching said policy and £10,000 got stolen. The theft would have happened regardless, but if they had followed the policy only £2,000 would have been stolen because the extra £8,000 should not have been on the premises to begin with if they followed the policy. They only got a warning. It's a different scenario, but breaching that policy is gross misconduct and it's evidence that gross misconduct does not automatically mean dismissal like I was told.

MacMickster

Unfortunately, what has happened in the past is fairly irrelevant.  A new manager has come in, seen an issue with the premises being repeatedly left insecure and taken decisive action by making an example of someone to ensure that it is unlikely to ever happen again. 

Would a tribunal consider this to be gross misconduct and dismissal within the range of reasonable outcomes? I would imagine so, but it is up to you whether you wish to pursue the matter to tribunal and find out.