Dismissed due to gross misconduct, what are my options?

fatbelly

I think you should not reveal too much info about yourself in this thread. Nam ing your employer may be a step too far.

I also work for a big employer and my observation is that unfair dismissal claims never proceed to tribunal. They are always settled beforehand.

TheDancingPony

Yeah I've asked the mods to remove that, point is though local authorities don't necessarily require a DBS check for employees with unrestricted access to personal information of vulnerable service users, the public would be shocked if it was reported in the local press. 

My union guy said something similar, it's very likely they will settle than risk that reputational damage, with all the work I've done for them I've certainly earned my notice pay and then some. 

Jude57

TheDancingPony said:

fatbelly said:

I can't comment on how successful it would be but, as you mention tribunal...

It may be the best thing to do tactically to make a claim before the deadline expires

Be aware that you need to have had minimum 2 years employment

And there is a strict time limit for the application of 3 months minus one day from the date the employment ended


In the first instance you appeal the decision internally

I've been employed over 6 years hence the 6 weeks stat notice would normally apply, It was only a few days ago I was dismissed so I seem to have plenty of time to go through the appeal and tribunal process.

I'd caution against seeking advice outside your Union for two reasons: First, the ACAS helpline is staffed by call centre staff, not legally qualified employment experts. They follow a script which is very unlikely to cover your specific situation and ACAS very rarely take on cases of individuals, unless an individual's case has wide-reaching implications for the general public. With respect, yours doesn't seem that unusual.

The second, and far more important reason is that, as a Union member, you are supported by the Union and the expectation is that you will follow their advice, not that of outside organisations/individuals who don't have access to the policies you're questioning nor knowledge of custom and practice of your specific employer. Your Union, via your local Rep, has all that and is best placed to advise you. It's not uncommon for Unions to decline further support to members who don't adhere to this. Seeking anonymous advice online probably wouldn't fall into that category but seeking advice from ACAS or an outside solicitor almost certainly would. And as difficult as it might be to hear, if your Union's legal advice is that you don't have a good case, it's because, having considered all the facts objectively, you don't have a good chance of success. 

On the facts as you've presented them I'm afraid that I have some sympathy with the employer here. This is the second time you've been arrested for similar behaviour which could, potentially, bring your employer into disrepute. And if there's any doubts about their being able to provide a safe workplace for your colleagues due to your behaviour (although I accept this recent incident was outside work), that could have factored in to their decision. A disability, physical or mental, is not a licence to do anything without consequence and while, yes, an arrest and a charge are two separate things, arrests certainly are recorded in publicly accessible records and very often feature in the media, especially local newspapers. 

I'm sorry you're in this situation but I can't see what your employer has to lose by fighting you at Tribunal and even if they were amenable to setting outside that, they currently hold all the cards so any settlement they offer is likely to reflect that.

NCC1701-A

TheDancingPony said:

Why would a settlement agreement be unfair on a new employer? I received commendations for performance so that's not an issue. 

Have a think about it. As an employer you receive a reference saying TheDancingPony worked for us for 6 years. Or you receive a reference saying TheDancingPony worked for us for 6 years, refused to wear our uniform, had X sick leave and was dismissed for gross misconduct.  Both references are true but as an employer would you want to know the omitted information to make an informed choice.

TheDancingPony

Jude57 said:

TheDancingPony said:

fatbelly said:

I can't comment on how successful it would be but, as you mention tribunal...

It may be the best thing to do tactically to make a claim before the deadline expires

Be aware that you need to have had minimum 2 years employment

And there is a strict time limit for the application of 3 months minus one day from the date the employment ended


In the first instance you appeal the decision internally

I've been employed over 6 years hence the 6 weeks stat notice would normally apply, It was only a few days ago I was dismissed so I seem to have plenty of time to go through the appeal and tribunal process.

I'd caution against seeking advice outside your Union for two reasons: First, the ACAS helpline is staffed by call centre staff, not legally qualified employment experts. They follow a script which is very unlikely to cover your specific situation and ACAS very rarely take on cases of individuals, unless an individual's case has wide-reaching implications for the general public. With respect, yours doesn't seem that unusual.

The second, and far more important reason is that, as a Union member, you are supported by the Union and the expectation is that you will follow their advice, not that of outside organisations/individuals who don't have access to the policies you're questioning nor knowledge of custom and practice of your specific employer. Your Union, via your local Rep, has all that and is best placed to advise you. It's not uncommon for Unions to decline further support to members who don't adhere to this. Seeking anonymous advice online probably wouldn't fall into that category but seeking advice from ACAS or an outside solicitor almost certainly would. And as difficult as it might be to hear, if your Union's legal advice is that you don't have a good case, it's because, having considered all the facts objectively, you don't have a good chance of success. 

On the facts as you've presented them I'm afraid that I have some sympathy with the employer here. This is the second time you've been arrested for similar behaviour which could, potentially, bring your employer into disrepute. And if there's any doubts about their being able to provide a safe workplace for your colleagues due to your behaviour (although I accept this recent incident was outside work), that could have factored in to their decision. A disability, physical or mental, is not a licence to do anything without consequence and while, yes, an arrest and a charge are two separate things, arrests certainly are recorded in publicly accessible records and very often feature in the media, especially local newspapers. 

I'm sorry you're in this situation but I can't see what your employer has to lose by fighting you at Tribunal and even if they were amenable to setting outside that, they currently hold all the cards so any settlement they offer is likely to reflect that.

The reason I was arrested was disability related, so I don't see how they can consider it misconduct. I'd totally understand letting me go because there are a number of factors not compatible with my employment, but to class it as gross misconduct and not pay me statutory notice pay Id normally be entitled to is just not on after everything I've done for them.

There are a number of issues to raise in the appeal, the code of conduct when interpreted by a reasonable person would not lead to an inference that arrests need to be reported, my employer failed to follow the disciplinary procedure after my first arrest, and after my 2nd arrest I had fluctuating capacity with psychotic symptoms and was off sick which is why I didn't report my laptop had been seized and I had bail conditions, it had only been two weeks between my release from hospital and the invite to a meeting so there wasn't much opportunity to report it anyway.

Proper consideration was not given to the allegation regarding potential reputational damage either, when compared to this becoming public in a tribunal whether I win or lose, it will cause significant reputational damage so a settlement with an NDA would be a far more appropriate way of dealing with the matter than dismissal for gross misconduct..

TheDancingPony

NCC1701-A said:

TheDancingPony said:

Why would a settlement agreement be unfair on a new employer? I received commendations for performance so that's not an issue. 

Have a think about it. As an employer you receive a reference saying TheDancingPony worked for us for 6 years. Or you receive a reference saying TheDancingPony worked for us for 6 years, refused to wear our uniform, had X sick leave and was dismissed for gross misconduct.  Both references are true but as an employer would you want to know the omitted information to make an informed choice.

Well obviously I'm disputing that it was gross misconduct.

NCC1701-A

TheDancingPony said:

NCC1701-A said:

TheDancingPony said:

Why would a settlement agreement be unfair on a new employer? I received commendations for performance so that's not an issue. 

Have a think about it. As an employer you receive a reference saying TheDancingPony worked for us for 6 years. Or you receive a reference saying TheDancingPony worked for us for 6 years, refused to wear our uniform, had X sick leave and was dismissed for gross misconduct.  Both references are true but as an employer would you want to know the omitted information to make an informed choice.

Well obviously I'm disputing that it was gross misconduct.

I’m not asking you to look at it from your point of view, I’m suggesting you think about it from an employer’s point of view. 

General_Grant

TheDancingPony said:

Yeah I've asked the mods to remove that, point is though local authorities don't necessarily require a DBS check for employees with unrestricted access to personal information of vulnerable service users, the public would be shocked if it was reported in the local press. 

My union guy said something similar, it's very likely they will settle than risk that reputational damage, with all the work I've done for them I've certainly earned my notice pay and then some. 

It would be better if you deleted that post yourself.  I think you'll find some dots to the top right corner of your post which lead to being able to edit or delete.  (Fortunately nobody has quoted it.)

cr1mson

In my previous organisation the failure to report the laptop being out of your possession would be considered gross misconduct. There was very little leeway and expectation is that it is done as soon as you are aware so for example 2 colleagues has their cars towed with laptops, both with them secured appropriately within the car and the one who didn't report it was let go under gross misconduct.

So whilst you may be able to argue that during your hospital stay and treatment you would not have been aware that the laptop was out of your possession once you returned home you had capacity and time to do this.

However the best thing is to take your unions advice as they will have fuller details and hopefully a good understanding of how your employer will behave.

I would also caution you to think about the mental cost that pursuing this may take. There is no point getting your notice pay for it to ruin your mental health.

elsien

TheDancingPony said:

marcia_ said:

TheDancingPony said:

My other concern is my reference, being sacked for gross misconduct would really affect my future employment prospects more than a conviction would, is it possible to negotiate an agreed reference>?

Also will the job centre try to sanction me for a non-workplace incident, even though the decision is being currently appealed?

 I would get more support from your union and definitely appeal. Probably call acas too.
make a formal complaint to your employer following their complaints procedure then move to mediation or tribunal if not successful. Following these steps the employer might back down and agree to a clean slate so it doesn't become public, 

 I think you have a good case for disability discrimination because you can not be expected to report in when in a hospital and /or suffering from psychosis. Fact is they knew because someone else told them, who was it that told them? So why the need for a separate call from an extremely sick person. 

 Personally I would not want to go back working for them but you can get it cleaned off your record so it doesn't affect future job prospects. 

Thanks. Basically when I was section 136 I saw two psychiatrists and a social worker from the local authority and it was the social worker that informed my employer via the safeguarding route, which I believe had been abused because it is something that doesn't really apply to my role

S136 is very simply just the police holding powers so that someone can be taken to a place of safety and be assessed under the mental health act. It lasts for up to 24 hours. 

The two doctors and the psychiatrist would have  been carrying out the mental health assessment which presumably decided you didn’t need to be detained under the mental health act, because you don’t then mention a section 2 or 3. 

So did you stay in hospital as a voluntary patient which requires capacity for you to agree to, or did you not stay in hospital at all after your arrest? 
People can be in hospital quite unwell but I think you need to be careful about the capacity side of things if you are using that to back up your case, because it’s less than clear from what you’ve posted so far. 

Making safeguarding alerts isn’t optional where there is a concern. The social worker would not have had a choice.