Suspended whilst being investigated for gross misconduct

(7 Posts)
UtterlyDesperate Sat 03-Mar-18 12:31:16

I have a thread over in legal, where people have been really helpful but suggested I post here too
https://www.mumsnet.com/Talk/legal_matters/3183299-Can-you-claim-constructive-dismissal-whilst-suspended?watched=1&msgid=76060245#76060245

I understand that it doesn't constitute constructive dismissal thanks to the posters, but I am grateful for any advice.

I stand accused of two things, the first of which is easy to prove false and the second of which is unfortunately true. (I know - it was completely stupid of me) The reason I did the second thing was an established reaction from an individual with my diagnosis, and it definitely happened as a direct reaction of their failure to make appropriate adjustments. (I'm not excusing what I did at all - it was totally unacceptable - but just trying to add context)

My union rep is on leave, as is the HR person who is dealing with this. I have spoken to the union solicitor but when I was distraught, so I will speak to them again on Monday. I will also be calling my branch office, and home insurance to try to get a solicitor (though if necessary, I will pay) who specialises in employment law. I will also ask HR to send me the various applicable policies. What else could/should I be doing?

In particular, I am wondering if I should call first thing on Monday and admit to the second offence. I don't know if they will have a way to prove it or not, but I accept responsibility.

I called HR immediately, but my person was on holiday by then - tbh if I had spoken to her, I would have admitted the second point then.

Obviously, I'm devastated, distressed and everything, and I know this is my fault in part. There is obviously a lot more, but it would be hugely identifying even more than this post, and even longer. But if people could possibly advise based on what I could do, I would be so grateful.

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UtterlyDesperate Sat 03-Mar-18 12:36:54

Oh, and confession: I loathed my employer with a passion. Their treatment of me over the years has led me to develop extremely severe MH disabilities (which they've been aware of for the last 6 years) I would have left if I could have found another job - but I'm in a very niche field. I'm aware this is career-ending no matter what.

I'm torn between just resigning and taking it as a sign that part of my life is over, and being found guilty and seeing if I can get a judgement over them at tribunal.

Ironically, I was advised some months ago by a solicitor that I had a case for constructive dismissal. The incident in question was the trigger for my recent illness, and unfortunately, by the time I was well enough to deal with it, the time limit had expired.

OP’s posts: |
AJPTaylor Sat 03-Mar-18 12:43:52

take expert legal advice before doing or saying anything to anyone. in all honesty its tempting im sure to admit to the second thing but you need to understand the implication of it first. an expert will be able to look at all of the facts including the bachground. they may be able to resolve either through negotiating a reference or otherwise.
sit tight.

daisychain01 Sat 03-Mar-18 15:31:23

I will also be calling my branch office, and home insurance to try to get a solicitor

You may have already discovered from your insurance company that they won't cover you, at least not at the moment. Your employer hasn't yet dismissed you, so you don't yet have a claim for unfair dismissal. Your employers are going through an investigation, which will determine whether grounds of a (future) dismissal on the basis of gross misconduct will stand.

After they issue their decision, your employers must give you the right to Appeal the decision, usually within 7-10 days.

You then need to go through the Appeal process and if they decline that, and stick to their guns, only then will your insurance company consider your case.

Your insurance co's panel solicitor will review your case notes (ie any documents exchanged between you and your employer; the outcome of the investigation and decision to dismiss you; any notes you took in meetings) and decide if your claim stands a "greater than 51% likelihood of success" at Tribunal. If they give it a less than 50% chance, they won't fund a Tribunal case.

As part of the information gathering, you would need to give the solicitor full facts about both allegations in order for them to make the assessment, as they need to know everything that might be presented by the other side in Court.

I think that solicitor who said you had a case for CD some months back could have been jumping the gun and may not have had access to the full facts. CD claims cover a much narrower set of circumstances than is commonly perceived, and certain things need to be "in the bag" at the right time, in order for the claim to be viable.

Just one example: your assertion that your employers have been treating you badly over an extended period of time scuppers the CD claim, as it suggests that, on one hand their behaviour was unacceptable, yet on the other, you continued to work under your contractual Ts and Cs between you and them, which signals that you were willing to accept the contractual Ts & Cs.

Even if your insurance company don't fund your case, they normally operate a Helpline which is staffed by knowledgeable people (Albeit not solicitors) so you do have some resource to draw on.

ACAS tend to be very prescriptive in their advice, working off checklists and don't substitute good quality legal advice.

UtterlyDesperate Sun 04-Mar-18 14:21:25

Thank you both so much! Really useful and valuable advice: hugely appreciated.

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daisychain01 Sun 04-Mar-18 14:47:32

Happy to help. These employment issues can be hugely stresssful and isolating, so don't hesitate to nip back on her with any queries.

You don't need to give any information that is identifying but sometimes knowing where you are in "the process" can be reassuring and at least gives you back some control.

UtterlyDesperate Tue 06-Mar-18 10:57:23

Thanks so much @daisychain01 - hugely appreciated! I think it's now a waiting game with my employer, vis a vis a disciplinary hearing - the HR person was "unavailable" whenever I called yesterday and I'm waiting for the union to call me back.

A huge, huge thank you, though, to you and everyone else for their advice and support - there's just me (plus my two long distance friends) so it's been really beneficial to hear from MNetters flowers

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