Gross misconduct case

gemmayates123 · 13 October 2019 at 2:37PM

Hi I am inquiring about a gross misconduct case. I am currently on Maternity leave at the moment. And decided to build a n upcoming buisness for myself as a second income, to allow me to take the full 12 months of work, as I will not get maternity pay for the last 3 months.However, My employer has now been informed by one of my collegues about this. I received a letter in the post, basically saying as it was a conlict of interest, and I didnt inform them it is now gross misconduct. I have asked for a copy of my contract, which they say they have no signed copy as I never returned it. This is not the case as I signed the first copy, and emailed it over. Then 6 month later head office emailed our store and asked for me to sign another one as they had misplaced miune. I originally thought this was weird, adn though as I was pregnant (which i fell pregnant the 1st week i started the job) they would have reconstructed the original contract so maternity pay was mentioned in it. This was not the case so I signed the contact and scanned it over myself from our store email to head office. They now have no trace of this at all. I thought they had to keep emails for a certain amount of time. I then contacted the ICO as they have lost my data. I then emailed my work back with this information. They sent me a letter saying they are still going along the gross misconduct case. I had a look online and it says that sometimes its automatically unfair if you are pregnant or on maternity leave, and also classed as a whistle blower. Which as I am reporting them for losing my personal data. I feel like I am pushed into a corner, Im now not allowed to contact my colleagues, who are actually my close friends also, and after having my baby suffered with a lot of depression which is now adding to this and now on anti depressants, I was looking back to go to work but they have now made me feel embarrassed to do so, as they have discussed my investigation with the staff already before I have been in. They are stating it says in the company handbook:

The company recognises that from time to time you may seek to take up additional and separate emplyment with another employer. Although the company has no desire to restrict your external activities, we must seek to protect our own interests and those of all our employees. The companies policy is that employees who take up additional employment must provide full details of the place and type of work and hours involved. Written details to be sent to xxxxxx. However the company is not willing to accept a situation where you are off work ill and still continue with a second job and any evidence of this will lead to the withdrawral of sick pay and also be classed as serious misconduct and subject to diciplinary,

Im not sure where I stand as I feel that as I got pregnant basically the first day I started the job, which was out of the blue as i had fertility to have my first child, I am being pushed into a corner. They have lost not one but 2 of my contracts. Discussed it with my collegues who have now blocked me on facebook, and sent me loads of photos of my facebook page and my new buisness page in the post.

Undervalued · 13 October 2019 at 3:07PM

gemmayates123 wrote: »

Hi I am inquiring about a gross misconduct case. I am currently on Maternity leave at the moment. And decided to build a n upcoming buisness for myself as a second income, to allow me to take the full 12 months of work, as I will not get maternity pay for the last 3 months.However, My employer has now been informed by one of my collegues about this. I received a letter in the post, basically saying as it was a conlict of interest, and I didnt inform them it is now gross misconduct. I have asked for a copy of my contract, which they say they have no signed copy as I never returned it. This is not the case as I signed the first copy, and emailed it over. Then 6 month later head office emailed our store and asked for me to sign another one as they had misplaced miune. I originally thought this was weird, adn though as I was pregnant (which i fell pregnant the 1st week i started the job) they would have reconstructed the original contract so maternity pay was mentioned in it. This was not the case so I signed the contact and scanned it over myself from our store email to head office. They now have no trace of this at all. I thought they had to keep emails for a certain amount of time. I then contacted the ICO as they have lost my data. I then emailed my work back with this information. They sent me a letter saying they are still going along the gross misconduct case. I had a look online and it says that sometimes its automatically unfair if you are pregnant or on maternity leave, and also classed as a whistle blower. Which as I am reporting them for losing my personal data. I feel like I am pushed into a corner, Im now not allowed to contact my colleagues, who are actually my close friends also, and after having my baby suffered with a lot of depression which is now adding to this and now on anti depressants, I was looking back to go to work but they have now made me feel embarrassed to do so, as they have discussed my investigation with the staff already before I have been in. They are stating it says in the company handbook:

The company recognises that from time to time you may seek to take up additional and separate emplyment with another employer. Although the company has no desire to restrict your external activities, we must seek to protect our own interests and those of all our employees. The companies policy is that employees who take up additional employment must provide full details of the place and type of work and hours involved. Written details to be sent to xxxxxx. However the company is not willing to accept a situation where you are off work ill and still continue with a second job and any evidence of this will lead to the withdrawral of sick pay and also be classed as serious misconduct and subject to diciplinary,

Im not sure where I stand as I feel that as I got pregnant basically the first day I started the job, which was out of the blue as i had fertility to have my first child, I am being pushed into a corner. They have lost not one but 2 of my contracts. Discussed it with my collegues who have now blocked me on facebook, and sent me loads of photos of my facebook page and my new buisness page in the post.

Sorry but most of what you have posted seems to be a smoke screen to try and avoid the main issue? Or at the very least a pile of red herrings!

Did you inform your employer of your part time business as required by your contract?

Whether you signed the contract or not is largely irrelevant. You are clearly aware of the terms and by working there and getting paid a contract has been formed.

If they have been negligent with your personal data they may get a "slap on the wrist" from the ICO.

However, claiming that the fact you have reported this alleged breach to the proper authority somehow make you a whistle blower so immune from all disciplinary action is frankly nonsense.

Even if it did that does not in any way stop them from taking disciplinary action over the apparent breach of contract on your part. That case stands or falls on its own merit.

You don't say but I assume you have been employed for less than two years? If so, than as you are doubtless aware, but for unlawful discrimination (on pregnancy or otherwise protected grounds) you can be dismissed for no reason at all without following any formal procedure.

Finally, if Gemma Yates is your real name, then you may want to consider if it is wise to post this sort of detail about your employer in an identifiable way on a public forum?

haras_nosirrah · 13 October 2019 at 3:15PM

Is the second job in any way connected to your first?

If they have no crossover and you are not poaching your business to your employers customers it is different to if you are doing something which directly competes with them.

It doesn't sound though as though they will be bending over backwards to keep you so this may just have given them the ammo needed to be able to fire you and with under 2 years you have very little protection

TELLIT01 · 13 October 2019 at 3:43PM

If, as appears to be the case, the OP has not informed their employer of their second employment they are clearly breaching their contract, and that is misconduct. I don't know enough about the law to say whether or not it is gross misconduct.
A second job doesn't need to crossover the first to be a problem. My last employer refused to allow staff to do any work which might impact on their ability to do their job properly. For example, bar or restaurant work was automatically refused because of the potential late finish and people arriving at work tired. That was a simple blanket ban. Had anybody taken such work it would almost certainly have been deemed gross misconduct.

gemmayates123 · 13 October 2019 at 4:07PM

The part about having a second job was in the company handbook not the contract which i have never seen. or been given

nicechap · 13 October 2019 at 4:15PM

gemmayates123 wrote: »

Hi I am inquiring about a gross misconduct case. I am currently on Maternity leave at the moment. And decided to build a n upcoming buisness for myself as a second income, to allow me to take the full 12 months of work, as I will not get maternity pay for the last 3 months.However, My employer has now been informed by one of my collegues about this. I received a letter in the post, basically saying as it was a conlict of interest, and I didnt inform them it is now gross misconduct. I have asked for a copy of my contract, which they say they have no signed copy as I never returned it. This is not the case as I signed the first copy, and emailed it over. Then 6 month later head office emailed our store and asked for me to sign another one as they had misplaced miune. I originally thought this was weird, adn though as I was pregnant (which i fell pregnant the 1st week i started the job) they would have reconstructed the original contract so maternity pay was mentioned in it. This was not the case so I signed the contact and scanned it over myself from our store email to head office. They now have no trace of this at all. I thought they had to keep emails for a certain amount of time. I then contacted the ICO as they have lost my data. I then emailed my work back with this information. They sent me a letter saying they are still going along the gross misconduct case. I had a look online and it says that sometimes its automatically unfair if you are pregnant or on maternity leave, and also classed as a whistle blower. Which as I am reporting them for losing my personal data. I feel like I am pushed into a corner, Im now not allowed to contact my colleagues, who are actually my close friends also, and after having my baby suffered with a lot of depression which is now adding to this and now on anti depressants, I was looking back to go to work but they have now made me feel embarrassed to do so, as they have discussed my investigation with the staff already before I have been in. They are stating it says in the company handbook:

The company recognises that from time to time you may seek to take up additional and separate emplyment with another employer. Although the company has no desire to restrict your external activities, we must seek to protect our own interests and those of all our employees. The companies policy is that employees who take up additional employment must provide full details of the place and type of work and hours involved. Written details to be sent to xxxxxx. However the company is not willing to accept a situation where you are off work ill and still continue with a second job and any evidence of this will lead to the withdrawral of sick pay and also be classed as serious misconduct and subject to diciplinary,

Im not sure where I stand as I feel that as I got pregnant basically the first day I started the job, which was out of the blue as i had fertility to have my first child, I am being pushed into a corner. They have lost not one but 2 of my contracts. Discussed it with my collegues who have now blocked me on facebook, and sent me loads of photos of my facebook page and my new buisness page in the post.

You stand in the middle of a disciplinary process and have made things worse.

You admit you've signed the contract twice - reporting them for not being able to locate it has made you look vindictive, there is no evidence of revealing your personal info.

Discrimination on grounds of pregnancy is unlawful, but nothing you have written suggests your employer is disciplining you because of your pregnancy.

They have held their investigation, and as is normal, telling colleagues not to contact in case that prejudices the investigation. They have also supplied you with your facebook business page as evidence.

What have your union advised you to say to explain or mitigate your actions?

Marcon · 13 October 2019 at 4:16PM

gemmayates123 wrote: »

The part about having a second job was in the company handbook not the contract which i have never seen. or been given

But you've clearly read the handbook and knew about it, so that is quite adequate.

Don't understand your comments about colleagues being close friends and then saying they've blocked you on Facebook.

It does sound as those a combination of having a new baby, post-natal depression and other factors might all be combining to make you feel the world is against you. Possibly some medical help rather than a battle with your employer might be the best next step? Do hope that suggestion might help, however unwelcome it might at first appear.

If you are posting under your own name, I suggest you ask for this thread to be deleted and repost under a new moniker which doesn't identify you.

gemmayates123 · 13 October 2019 at 4:28PM

Thats what i am saying I have never seen the company handbook, they have now told me its on the intranet, and when i started I had no training as it was peak season and was thrown into the job

Undervalued · 13 October 2019 at 4:41PM

gemmayates123 wrote: »

The part about having a second job was in the company handbook not the contract which i have never seen. or been given

It is still part of the terms and conditions of working for the company which you have agreed to by accepting the job and getting paid. A "contract" is far more than just a piece of paper with the word contract on it.

Even if it wasn't specifically spelt out, you have a duty to act in good faith. The clause you quote from the handbook is very common and something similar would be found in the majority of employment situations and is certainly not unreasonable.

Davy_Jones_II · 13 October 2019 at 4:42PM

It could well be a requirement of your contract that you familiarize yourself with the company handbook.

Being unable to locate an email which you sent is not a breach of data, this is not as though it is a physical copy that could have been left on a train, and you really can’t whistle-blow something like this, so I can’t see that you can try and use any of this as a defence.

You need to sit down and calmly and rationally get your facts together. Your company requires that you inform them of any external business interests, which you have not done, what is your defence against this claim?

You mention discrimination based on pregnancy / maternity, what is your evidence for this claim?

What regulation do you believe that was breached by someone being unable to find an email from you, or having deleted a file? How does reporting this fall within whistleblowing?

Finally, what outcome are you hoping for? Do you want to return to work, for example, or only for an agreed, neutral reference and the opportunity to resign rather than being dismissed?

Blatchford · 13 October 2019 at 5:46PM

I'm afraid I'm with everyone else. Based on what you've said here you have a load of red herrings, and little else. If an employer makes their policies available to you, which they did, then there is no defence in arguing that you didn't read them!

Cutting to the chase...
If the employer is going for gross misconduct based on conflict of interest, your only possible defence is that there was no conflict. You obviously should have informed them. But there is a slight chance if there's no conflict. Unfortunately, you've detailed absolutely everything except what your job is and what the business you've set up is. I'm hoping that's an oversight, but given your obvious intelligence and capability, I suspect it isn't. Otherwise, surely, that would be the rationale that you led with?

Gross misconduct case

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free