Gross Misconduct - Unsure where to turn

[Sam640]

Hi all,


Really do hope me posting here I am able to seek some advice. I'm facing the likely prospect of handing in my notice so that I can continue using the reference for future jobs.


Company has complied with ACAS regulations and has now set a side a final disciplinary date...


The allegations against me are, lying to a member of staff regarding my whereabouts and asking for another member of staff to cover for me. I have admitted the allegations but I do believe it was done mitigating circumstances. The charge is breach of confidence and trust.


Here is my story:


My family have been going through a tough time whereby my partner’s grandfather had suffered cancer to the neck and lower body; it is a type of cancer attached to the blood cells which is treatable through specialist treatment.


He was unwell for a period of time and was undergoing chemo therapy. At first the treatment responded well and he was fully fit and healthy and full of life. As time went by the lymphoma
had returned and further subsequent treatment was required, this in turn slowly had weakened him until the clear was given.


The cancer had returned for the third time over a period of one year, by this time doctors had advised this to be the final treatment, given his age and condition his body could no longer
cope with the treatment. Prior to Christmas Eve he was eventually given his final treatment and the family could only stand by in hope. By this time the cancer had retuned and his health & weight fell into rapid decline, one day he could walk freely and then in the next few days bed ridden requiring assistance for his mobility and care.


Doctors had advised he was going to be placed on the Liverpool Care Pathway as he was not able to have any more treatment due to his condition. I have stood by with the family and assisted where possible from the moment of his first treatment, using any time possible. Over time I and my partner’s granddad grew a special bond together, he had appreciated every help I could give to him and his family doing what was necessary at the time.


On Christmas Eve he’d asked me to visit him and comfort him, he knew he was in rapid decline and asked for his family to be close by. On the day of Christmas Eve, I was working away with close proximity to my partner’s grandfather; I was hoping I’d leave for work in a matter of a few hours.


I explained I had to leave for work, but he’d asked me to say. I understand I took it upon myself to go visit him and not contact a senior manager as I thought I could both work and comfort him at the same time. I now know this was the wrong decision to make and should have discussed with my Line manager during our one and only supervision session of home life difficulties.


On Christmas Eve senior manager had called me and asked where I was, having known I’d made the wrong decision I lied to the senior manager and stated I was in another location. I knew this was the wrong thing to do and I panicked. I was at my partner’s grandfather side and was unsure what to say. I was sat with a man who needed care and a cross call with a manager. I felt the manager would have been displeased should I have told him of the situation and what I chosen to do.


From the moment I panic, I contacted another member of staff and asked if should could cover me should the senior manager asked, she declined and from that moment I knew I should not of asked her to get involved. I felt some comfort that she declined and never was any under pressure to accept. I did not give her a reason as I felt this was too personal to push onto her.


With his conditions getting worse by the day and knowing the Liverpool Care Pathway, I had asked work to take some time off some time off, which they agreed . My partner’s grandfather passed away during that time. I was there at his last moment to comfort him till the end and subsequently attend his funeral a few days later.


I had 7 working days to confess the allegations raised. Whilst in that time period I noted there was supervision arranged for 07.01.2013. I did want to use this opportunity to discuss with my line manager of my actions and seek advice. My senior line manager said I had ample opportunity to discuss the allegation, however due to work commitments and nerves I was not able to succumb to the opportunity but did want to in Supervisions as it’s seen as an area to discuss anything affecting working life. I felt nervous, sick and appalled of my actions, stuck with a decision to help comfort or to be at the correct locality. They were was disappointed by my actions and I was and have been since sorry for what had happened.


I never did want to cause a breach of trust or to waste anyone’s time in the matter. I continually did my work as required and never did use any opportunity not to do work, as there are many projects at hand to complete and do.
I have worked very hard for the firm. I have placed more hours than I normally should have, previously not logged until management asked me to log all extra hours. I have been committed and always will be committed to my work and colleagues, always supporting them and looking for solutions to help aid everyday working practices.


It’s given me time to reflect and think about the consequences, and has made me feel anxious and overwhelmed given me lack of sleep and health gradually subsiding due to not know where the investigation will lead to.


Thank you all for reading and understanding.
Question now is of no doubt of handing in notice or not, to brave through the final hearing...

[flowery]

Ok, so you have mitigating circumstances which you have no doubt already submitted and which you would explain again at the hearing.

Is your disciplinary record otherwise completely clean?

I'm concerned that you think you will be able to rely on them for a reference if you resign before they have a chance to dismiss you. If you did that they would be perfectly within their rights to state in the reference that at the time you resigned you were in the middle of a disciplinary process for alleged gross misconduct but resigned prior to the hearing. That would obviously be of concern to a future employer. I think you need to find out what your employer's policy is about references generally if you can.

[Sam640]

Thank you flowery for the quick response.

Mitigating circumstances have been submitted but then has led to the investigation officer to recommend a hearing.

I've been with the same employer for 3 years prior in a different region, my employment records a clean, all supervisions signed off, and worked above and beyond.

There was then a years gap with another employer, but then left to re-join the one I am at now albeit another office, it is a large company. I honestly do love the work I am doing as I know what we do makes a difference.

RE: reference: HR will give the facts if asked.

[CajaDeLaMemoria]

Was it a quick trip to see him? How many hours were you there instead of at work?

[fascicle]

Sam, you haven't said what sort of work you do (which might affect the severity of the 'breach of confidence and trust' allegation). Opinions on Gross misconduct will vary (and also depend on company definitions), but from the information you've provided, gross misconduct sounds disproportionate.

I agree with flowery - I can't see that resigning will necessarily benefit you in terms of a reference and its contents.

Is there anybody at work, senior to you, who will vouch for your overall good record, for consideration during the hearing?

[Sam640]

It was a quick trip.. been visiting before work and then straight after work consecutively for a month. On this particular day he'd ask me to stay ... he knew his conditions getting worse. Due to the nature of my the job allowed me to work remotely I chose to stay, so I was working away whilst with him throughout that one day.

[Sam640]

I've thought about the resignation and you guys are correct ... I should go through this.

There is one person in the company who I can ask to come into the hearing provided he does agree... he's seen me work and have had countless conversations about work. He's a tough but fair character.

[WipsGlitter]

So were you working online?

[Sam640]

Working online and offline. Primarily reports. Calling and speaking to staff regarding some queries.

[CajaDeLaMemoria]

Were you missing for the whole day, then? 8 hours?

Should you have been on the site for that whole day?

I'm trying to understand how bad the offence is, by the way, not undermining your decision. I fully understand why you chose to stay.

[Sam640]

Yes and yes.

What I would have done onsite would have been the same as what I did on the day.

[lougle]

Sam640, I don't know if this will help you in anyway, but if you read your posts, even though you are fairly anonymous here, you are minimising and trivialising your actions. Here:

"Was it a quick trip to see him? How many hours were you there instead of at work?"

"It was a quick trip.. been visiting before work and then straight after work consecutively for a month. On this particular day he'd ask me to stay ... he knew his conditions getting worse. Due to the nature of my the job allowed me to work remotely I chose to stay, so I was working away whilst with him throughout that one day."

Then, when you're asked "Were you missing for the whole day, then? 8 hours?" the answer is 'Yes'.

I think you would fare so much better if you go to this meeting with the view that you've submitted your mitigation and that they are able to see it, so you need to be as contrite as possibly during the hearing, accepting fully the gravity of your error.

I fear that should you try and emphasise your mitigation, you'll be seen as minimising and not really appreciating what you've done, which might give the impression that there is a reasonable risk of you repeating this action.

[WhoNickedMyName]

So you basically just didn't bother turning in to work one day? And this was Christmas Eve.

Didn't call in to let them know, make them aware you'd be working from elsewhere, ask for a days annual leave, offer to make the time up or take it as unpaid?

Then when called on it you lied to your manager, then asked another member of staff to lie for you?

I can totally see the gross misconduct here I'm afraid.

Like the PP said I think you need to go into your hearing emphasising that you're very aware of your error in judgement, you're very sorry and it won't happen again - and hope for the best.

[Sam640]

Ive accept the full gravity of my error. And as such I feel terrible for one not being where I should have been and secondly he knew where his condition was heading.

Although this was christmas eve I did ask for time off after christmas and during that time he'd pass. On a regular bases ive been with him and through his appointments. A quick visit in the morning and he would have been happy but as his health went down hill he wanted everyone to be there. In my culture we respect our elders irrespective of what we do... if it wasnt for them we wouldn't have much.

I panicked and did not what to do..

[Lagoonablue]

Go to the hearing and hope for the best. Be contrite.

Have you got representation? Union or whatever?

[NanaNina]

I might be wrong but I thought that under Data Protection Regs that references can only state the periods that someone worked for them and that the reference can only be factual. Obviously if you are "sacked" then that would have to be stated in the reference.

IF I'm right, then maybe OP would be better resigning. I can't really get the hang of the details (I think all the over detailing about the relative's state of health etc) were unnecessary. It doesn't help that we don't know what job Sam640 is doing.......the facts do seem to change, so I'm a bit confused.

I think if you go down the internal route, you must desist from over detailing about the illness of your relative because this could be seen as you trying to get sympathy because of this, and it won't go down well as this is irrelevant to the company.

[lougle]

You see now that you should have told your boss the situation and asked to leave. If you had been told no, then you'd have to decide whether your job was worth the risk. Instead, you lied and asked someone else to be complicit in that lie.

You weren't being unreasonable to want to be with your relative. You were unreasonable to do what you did and I'm not sure I'd see the excuse, tbh.

[MostWicked]

I think the problem is, when you work out of the office, it is even more important that you can be trusted to be working and doing what you are supposed to be doing.
A reference can give facts, including the facts of this case.
Although I understand your mitigation, I think it will be difficult to argue. Your partner's grandfather would not normally be considered a close relative.

[fascicle]

I can totally see the gross misconduct here I'm afraid.

The OP made some errors of judgement but she says she was working throughout the day (might be useful to illustrate that at the hearing).

Surely a lesser crime than the practice of 'throwing a sickie'? Had the OP done that it would have shown her to be more calculating, and she would have been less likely to have been caught. Her actions on the day were indicative of somebody panicking and not thinking clearly - not the actions of somebody trying to screw their employer (OP, please do not use this as a defence at the hearing - it's just a comparison).

[NotCitrus]

Do you have evidence that you managed to get a full day's work done, or near enough? Is there any reason why you had to be working in the office that day?

It sounds like the same situation as when parents can't get childcare for a day and work from home - not permitted but in some organisations considered ok in an emergency. Is there a policy where your manager should have let you or strongly considered letting you work while caring for a day or two as a special circumstance?

[flowery]

"I might be wrong but I thought that under Data Protection Regs that references can only state the periods that someone worked for them"

Not true at all. It's perfectly fine to give more detail and preferable for the new employer and the employee as well, usually.

You are right references do need to be factual though. Basically the employer giving the reference has a duty to both the ex employee and to the new employer. A reference must be accurate and must not give a misleading impression.

It's a bit of a minefield as if the employer giving the reference gives a negative impression of the employee, they are vulnerable to challenge from the employee. The only way to avoid this is to make sure everything they say in a reference can be proved. For example, the employee might have been absolutely rubbish at a certain part of their job, so saying so in a reference wouldn't actually be misleading. However if this concern had never been raised before, and there was no documentation to prove it, it would be very unwise of the employer to mention it.

On the other hand, if there is something fundamental but also negative, there is certainly a strong argument that the ex employer has a duty to divulge that information to the new employer.

For example, if an employee worked in a retail environment and was caught stealing and dismissed for it, but then applied for a new job in another retailer, the new employer could consider taking action against the first employer if it suffers a loss through theft from that employee and the first employer had withheld that fairly significant piece of information.

If the employee was caught stealing but resigned before the employer had a chance to dismiss them, it would be fine and sensible for the ex employer to state that the person had been subject to disciplinary proceedings at the time they left.

With all this, it's easy to see why many employers now stick to a policy of dates only...

[Hoppinggreen]

I resigned when facing a gross misconduct charge ( justified).
There was never a problem with references as they stated that I resigned but I was advised by HR that if I had been dismissed they would be obliged to disclose that in a reference if asked.
This was a large very sensitive to litigation American company so I believe them. A senior manager was sympathetic to me and promised f I resigned any future references would just state my dates of employment and the fact that I resigned, this did happen and I walked straight into another job.
Whether this would have been the case if they dismissed me I don't know as it would have stated on the reference I had been dismissed. This would have been factually correct so allowable.
If you think you will be dismissed for Gross Misconduct OP then I recommend you resign.

[fascicle]

Sam640 another thought - if your absence record has been good for the two spells of employment with this company, that's worth mentioning at the meeting. It adds weight to the events on Christmas Eve being out of character, and a blip on an otherwise good employment record with your organisation. As has been said earlier, it's important to tread a careful line at the hearing - putting across your case but fully acknowledging what you did was wrong etc.

[flowery]

Hopping it's perfectly fine for your ex employer to decide to play it safe and not mention your disciplinary in references, but the point is they (and the OPs employer) would be perfectly within their rights to mention it if they choose to do so, and the OP shouldn't just assume that references will be fine if she resigns rather than is dismissed.

[Hoppinggreen]

Completely agree Flowery, I was just giving my experience but I know each case might be different.
My point was that if she resigned her chances of a reference that won't damage her job prospects was better that's all. No guarantees I'm afraid

[flowery]

It depends how likely she is to be dismissed and what their reference policy is doesn't it?

You are right that many employers would err on the side of caution where there had been no dismissal, as yours did, so there's a reasonable probability that will be what they do, making resignation a good option if it seems likely she will be dismissed.

But if someone feels they have a good case themselves sometimes it might be better to fight it and clear their name and keep their job rather than leave under that cloud and have 'gross misconduct disciplinary' splashed all over a reference for something they may not have even done.