Gross misconduct dismissal

MrMagic

A person I know recently found someone else doing something that was defined as gross misconduct (according to company policy) in their workplace. It was quite an unusal situation which is best described as negligent, although possibly not intentionally so. The person I know felt obliged to report it. Nobody in their care appears to have been affected, certainly not harmed. She took some measures to check on welfare, although it proved hard at first because they were the only other person in the building (the role involves caring for others), but they satisfied themselves that everyone was safe and that there was no other risk. They reported it formally as soon as a manager came on site, which was later the same morning.  Later on the company claimed her actions had been insufficient, stating she "could have done more" to escalate at the time, and that she could have taken more measures. They went on to accuse her of negligence in view of her own response and then they dismissed her for gross misconduct. She provided what seems to me to be reasonable mitigation on the couple of points which were raised against her, but the company apparently did not agree. They stopped short of stating more exactly what should have been done.

The person I know has been working for the organisation for around a decade, with no other disciplinary issues at all during that time. It was a straight dismissal. 

I've since seen a statement of events which proves that a manager failed to escalate the complaint for a full day - after they had allowed the accused person to come to work again, and then worked directly alongside that person prior to statements being made. There are several other concerns.

Just wondering if anyone has been in a similar position with an employer. Rightly or wrongly this doesn't seem to 'sit right' somehow, but neither of us have any idea experience in taking matters forward, if it is even worth doing so.

TheSpectator

To be honest, you have given half a story with us having to guess 1) what the friend actually did and 2) what should she have done, according to management?

"She took some steps to check on welfare" tells us nothing.

Ayr_Rage

Post the facts, not your opinion on them.

If the person involved is a union member, speak to a rep.

LightFlare

Ayr_Rage said:

Post the facts, not your opinion on them.

If the person involved is a union member, speak to a rep.

 Better yet - get the friend to post here so they can answer any questions etc directly 

mr_stripey

negligence does not have to be "Intentional"

the fact no one was harmed is not relevant if safeguarding policies were not followed

But we only have the threads of the story here - your second hand account of your friend's situation is not clear enough to give meaningful advice

I

elsien

Anything that touches on safeguarding needs reporting right away. 

Given that you talk about the need for welfare checks, and given the extreme lack of information in the post, I’m going to presume there was a safeguarding concern so waiting for managers to come in was waiting too long, 
How managers then took it forward isn’t necessarily relevant. If a policy is that you do x in y  timescale and that didn’t happen continuing to leave people at risk, that is where the gross misconduct  comes in. 

If she’s in a union, as above she should contact them. I’m guessing she isn’t because otherwise you probably wouldn’t be posting on here so maybe she needs to look at alternative sources of advice for an appeal.

No one can comment further with only a fraction of the story. 

Speculative example – the person gave the wrong medication. Everyone was asleep. Your friend didn’t want to wake them up to check how they were so just stuck their head round the bedroom doors, saw everyone was asleep and considered that sufficient, rather than waking them up to ask how they were, and also phoning 111 for advice. 

gwynlas

Whistle blowers are often seen as trouble makers and management appear to have used her own actions against her. 
If she is a member of a union she could possibly go for wrongful dismissal otherwise she is on her own.

Undervalued

mr_stripey said:

negligence does not have to be "Intentional"

the fact no one was harmed is not relevant if safeguarding policies were not followed

But we only have the threads of the story here - your second hand account of your friend's situation is not clear enough to give meaningful advice

I

Intentional negligence is almost tautology!

Wilfully not doing your job properly is surely one stage worse than simply being negligent. However either could reasonably be treated as gross misconduct depending on the circumstances.

Undervalued

MrMagic said:

A person I know recently found someone else doing something that was defined as gross misconduct (according to company policy) in their workplace. It was quite an unusal situation which is best described as negligent, although possibly not intentionally so. The person I know felt obliged to report it. Nobody in their care appears to have been affected, certainly not harmed. She took some measures to check on welfare, although it proved hard at first because they were the only other person in the building (the role involves caring for others), but they satisfied themselves that everyone was safe and that there was no other risk. They reported it formally as soon as a manager came on site, which was later the same morning.  Later on the company claimed her actions had been insufficient, stating she "could have done more" to escalate at the time, and that she could have taken more measures. They went on to accuse her of negligence in view of her own response and then they dismissed her for gross misconduct. She provided what seems to me to be reasonable mitigation on the couple of points which were raised against her, but the company apparently did not agree. They stopped short of stating more exactly what should have been done.

The person I know has been working for the organisation for around a decade, with no other disciplinary issues at all during that time. It was a straight dismissal. 

I've since seen a statement of events which proves that a manager failed to escalate the complaint for a full day - after they had allowed the accused person to come to work again, and then worked directly alongside that person prior to statements being made. There are several other concerns.

Just wondering if anyone has been in a similar position with an employer. Rightly or wrongly this doesn't seem to 'sit right' somehow, but neither of us have any idea experience in taking matters forward, if it is even worth doing so.

To dismiss lawfully the employer must ....

Make a reasonable (layman's) attempt at conducting a fair investigation and disciplinary hearing. The employee has the right to be accompanied by a colleague or an accredited trades union rep at a disciplinary hearing (but not at an investigation although the employer may choose to allow it).

and

Dismissal must be within the range of sanctions a reasonable employer might choose.

That is all that is required

tacpot12

You might also check whether they have home insurance. If they do, they might well have legal expenses cover. If they have this, they can get professional legal advice for free. 

elsien

gwynlas said:

Whistle blowers are often seen as trouble makers and management appear to have used her own actions against her. 
If she is a member of a union she could possibly go for wrongful dismissal otherwise she is on her own.

I don’t think I would count this as whistleblowing.