DP being accused of gross misconduct, help!

[Answerplease]

This is going to be a whopper of a post, sorry! But would really appreciate any advice that anyone can give.

On Tuesday, DP was informed that he had carried out an act of gross misconduct and was to be suspended on full pay from work, namely 'conflict of interest and breach of intellectual property' (this is all that was stated on his letter telling him he was facing a disciplinary and was being suspended) due to a website he has. This misconduct is alleged (he assumed - he was not told this) because the website states he is open to freelance work (something that is specifically allowed in the employees handbook), and contains images of some work he did (although not anything like enough for anyone to be able to copy the work).

DP went to what he thought was the disciplinary hearing, only to find out it was the evidence gathering session, and did his best to defend himself, despite not being very clear on what he was accused of. At the end of this meeting he asked for further clarification of the allegations before the disciplinary hearing, next week.

He was sent a letter today (2 days later) which lays out a much more involved list of accusations, including:

1. Alleged soliciting of freelance work (which is allowed in the employee handbook, as long as there is no conflict of interest, so don't really get that)
   
2. Misrepresentation of himself (no idea how he is doing this)
   
3. Detrimental impact on the business (NB. he hasn't actually carried out any freelance work, so not sure business is suffering)
   
4. Breach of covenant - knowing that any approach for freelance work would be in direct competition and not permitted by the company (I just don't see that this is true, as he is trained in 2 types of work, and the other isn't at all in competition, and even the design side of his job involves lots of different aspects, very few of them in competition with his company if he were to do them)
   
5. Breach of intellectual property, particularly copyright and publishing rights in publishing the results of a piece of his design work on his website (a photo he took himself on his own camera).
   

He has also just received the minutes from the evidence gathering hearing, and they contain several massive omissions and lots of small omissions and some significant errors. These changes do not make DP exactly appear guilty, but make him seem unhelpful, ill-prepared and unwilling to defend himself, compared to how he actually was in the meeting. This leads us to believe that the minutes were either taken completely incompetently or were doctored by the manager before being sent to DP.

Other relevant facts include the fact that the same manager carrying out the disciplinary also tried to give DP a written warning 4 months ago without a disciplinary procedure (DP requested a disciplinary before being given a warning, manager agreed then just abandoned proceedings). No warning was issued. This followed on from a redundancy process during which no member of staff was made redundant, but the other two members of staff (DP was the third) are understood to have been much more cowed and alarmed by the process than DP was - he was described as argumentative (by this same manager) for standing up for himself during the redundancy process, when false allegations (albeit minor ones) were made about his conduct.

We are so lost with how to to proceed! Our main questions are:

1. Is it OK that his manager has only properly outlined the charges against DP after the evidence gathering session - DP believes that these accusations may have been massaged to fit the evidence he gave, but they are more of an expansion on the original accusations, I suppose [charitable head]
   
2. DP feels that this guy, for whatever reason, has a bit of a vendetta against him (given the manager's previous attempt to give him a written warning with no disciplinary). We are unsure whether to start a grievence for bullying or anything - is there any point? How would we prove it?
   
3. If freelance work is allowed in his employees handbook, how the hell can it be a sack-worthy offence to be openly available for freelance work?
   
4. Does anyone have any ideas about DP posting the photos of the completed product (well, part of it)? Is it really that awful? images of the item are now in the public domain, and it is in a public place and could be photographed by anyone, as it could at the time he photographed it, although it does still belong to the manufacturer (it's a big, single item, like a luxury car, now parked in a public car park)
   
5. Can we do anything about the hugely inaccurate minutes? DP will obviously raise this issue in the next meeting, but if it is minuted as badly as this one, it probably won't show in the minutes!
   

Ummm... any other thoughts/questions much appreciated!

[LucindaCarlisle]

Is he in a trade Union or a professional body who could help to defend his position?

Is the company part of a big organisation, or is it a public or civil service agency?

[TidyBush]

I don't know about the freelance and copyright issues but just a couple of things straight off:

1. He should have been advised that he is entitled to take a colleague or union rep into the disciplinary meeting, has he been?
   

1. Get onto ACAS first thing Monday for advice regarding the issue he has with the minutes.
   

Others with more knowledge than me will be along soon.

[Hopefully]

Sadly, no to all of those. it's a private sector company, small (around 100 employees, most of them factory workers), and he isn't in a TU.

[LucindaCarlisle]

He really needs to engage a specialist employment law OR intellectual Property Rights Solicitor to Defend him at the next hearing.

[claricebeansmum]

He needs a solicitor quickly.

As for countering with bullying accusation I think you will be asked why he did not bring this up earlier - it's going to look like sour grapes.

[LucindaCarlisle]

He also needs to ask for an adjournment to enable him to prepare his defence and engage a solicitor.

[Marchpane]

I can't answer the whole epic post because I'm on an iPhone and it's difficult to scroll about back & forth to your post, but I just wanted to make one point (I'll try to come back later when I'm on pc to give full reply):

Reproducing work done for his employer in any way is a breach of intellectual copyright. It doesn't matter that he used his own camera or whatever or that it can't be copied. He is not allowed to use that work other than where express permission has been given by his employer.

From what you've posted it looks like neither of your understand the concept of intellectual property and that is where your dp has run into trouble. Firstly by using it in the first place (due to not understanding) and then by trying to defend the use thereof (again due to not understanding).

Unfortunately that is not a mitgating circumstance and your dp would deserve a warning of some kind in the circumstance - even if all processes were being followed correctly which I'm not sure they are.

Was your dp accompanied to the meeting by a colleague?

[LucindaCarlisle]

Has anyone asked your partner to remove the photos from his web site?

My advice would be for your dp to close or suspend his web site immediately.

[Hopefully]

We are intending to phone ACAS on Monday, so hopefully they'll help too.

Clarice and Lucinda I was under the impression that while things were going through disciplinary it was inappropriate to have a solicitor present, as it changed the nature of procedings - i.e. until all standard disciplinary avenues were closed that legal representation wasn't allowed.

Marchpane thanks for that - we've been trying to get clarification on that point all week! (I'm assuming you actually know what you're talking about ). DP is totally prepared to hold his hands up if he has done something wrong, but no one seems able to tell him exactly what he's done wrong. Also, it seems a slight over-reaction to call it gross dismissal and possibly sack him for this (although obviously if he's done something genuinely wrong, a written warning or whatever, if it's really necessary, won't be quibbled). As it happens, his manager seems much more focused on the freelancing issue in the meetings. Maybe because they're confident about the IP issue so aren't discussing it with him, or maybe they're as clueless as us!

[LucindaCarlisle]

Has he got statistics of numbers of hits his web site has had?

How long was the photo available on the web site?

Does his web site log or record all the hits on his web site and the IP addresses of all those who have viewed the photo.
I suggest that he compiles that data.

[DaftApeth]

Sometimes your household insurance will cover for you for a solicitor.

Have a look at your policy in this regard.

I would get your dh to make notes about where he feels the inaccuracies from the minutes are whilst it is still fresh in his memory and for him to keep his own notes in any future meetings. Perhaps he could ask to see the notes from whoever took the minutes?

nb. I have no employmeny law knowledge, just a small amount of expereince when my dh ad to see an empoyment lawyer.

Many/most solicitors will give you a free half hour consultation which would give you the chance to go through the issues with them for some initial advice.

[LucindaCarlisle]

Have the company published any photos of the product themselves?

[Hopefully]

Oh, and Lucinda no one asked DP to remove the photos, but he took the website offline as soon as this process started. In the meeting on thursday the (hugely inaccurate) minutes suggest that he was asked to do this, when in fact he did it without asking.

[Hopefully]

The company have published lots and lots of photos of the finished product, and taken it to public shows where it has been seen by thousands (although I appreciate that if DP has breached IP, he has breached IP, regardless of this).

Will check insurance policy, thanks!

DP hasn't checked stats of the website, but he can (will get him to do so). The ironic thing is that it's likely to have received literally no hits, as he really only keeps it up for ex-colleagues to be able to find him if they want to recommend freelance work, and most of them would phone rather than searching for him online anyway. He hasn't actually done any freelance, on the back of the website or otherwise.

[Hopefully]

Daft DP has added notes everywhere in the minutes where he feels that there are errors.

[Hopefully]

Oh, apols for name changing - had changed to post a personal question elsewhere and forgot to change back! Luckily I didn't actually post the personal question or I'd be somewhat outed...

[LucindaCarlisle]

I honestly do not think that he has breached any IPR in publishing the photo. I think the company do not understand the concept of photos and of IPR.

He MAY have breached COPYRIGHT, but in my opinion he has not breached IPR.

Find a specialist solicitor in IPR on Monday morning.

[Hopefully]

Thanks Lucinda - we will do our best to find someone - it really appears to not be at all clear cut.

Of course if DP has done something wrong (however inadvertently) he will hold up his hands, but it's just so hard to work out whether he has!

[Marchpane]

You haven't answered if he was offered the opportunity to be accompanied in the meeting. Part of the role of that person is to take notes on your dp's behalf.

He won't be allowed to take a solicitor into the meeting and tbh it's a bit early for that. Insurance will usually only kick in for tribunal proceeding although they may offer a free legal advice line.

Directgov website has lots if info about disciplinary process. Sorry I can't link now but will try to later.

One thing i can say is that an employer has to be very clear what the misconduct is. Eg "On 17th September a photocopy of Mrs X's passport was found in your locker during a routine check. This is a breach of our data protection procedures. Copies of the procedures have been enclosed with this letter and can be found in the employee hand book page 11-14"

[LucindaCarlisle]

My advice, is to go to a good bookshop tomorrow and find a good Legal advice book on the topic of IPR or Copyright.

Look for a students guide to Intellectual Property Rights. Or a laymans guide to IPR.

[CarGirl]

HOpefully you can speak to ACAS on Monday, I know nothing about the relevant law but I would put in writing on Monday and send it recorded that your dh contests the minutes as not being accurate of the meeting and also questioning why he wasn't told that it was evidence gathering and that he wasn't told he was allowed to bring someone with him.

[howdidthishappenthen]

TBH at this stage it doesn't seem to matter very much whether he's guilty of anything - it seems as though there's a witchhunt and if a small company wants you out, then sooner or later you're going to be out. The priority now will be playing all your negotiating advantages so that your DH exits with the max sum of money. I would def employ a solicitor - they can't come with him to the hearings, but they can point out all the mistakes that the company is making in the process, and make sure you in turn make as few as possible mistakes. Mistakes = money when an exit settlement is reached. Good luck

[Hopefully]

Marchpane he was offered this opportunity, although the person accompanying him didn't take any notes (although he's an intelligent chap, and could probably be asked to look at the minutes and add any major discrepancies). DP will ask him to take notes at the next disciplinary. His employer was nothing like as clear as that about the disciplinary. The first letter stated simply that he was accused of 'conflict of interest and breach of intellectual property rights'. It contained no mention about the website, any images on it, or anything like that. These things were only mentioned in the meeting at which he was given the letter, but he was not given much detail (he said at the beginning of the evidence gathering meeting that he was unprepared as he had not been given enough information. This did not appear in the minutes of the meeting).

We are going to recorded delivery our version of the minutes to them on Monday, with a letter explaining that we disagree with their version of the minutes. We will also email this through to them.

Thank you so much to everyone for your thoughts. We clearly need to speak to ACAS as well, but your posts are great for giving me more ideas to talk to them about. Any more posts much appreciated!

[Hopefully]

Howdidthis that's what we're worried about! Have a family member who is not an employment lawyer, but lots of experience in that area and he's recommended the same thing.

[LucindaCarlisle]

Ask that the next hearing be recorded verbatim by a tape recorder.