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Legal advice re. possible unfair dismissal(33 Posts)
I’ve been accused of gross misconduct and dismissed from my job. I’m planning on appealing as I believe it’s a possible unfair dismissal. I have raised these concerns to my manager who stated it’s not but I was hoping someone with some HR / legal knowledge can tell me what you think.
I started a job at x company. Had the induction, read all the policies, went on training etc.
Several years later the company was sold to a new owner and was franchised. New company name. I was given a p45 and a new contract with my new employer. Pay slips come from new employers company not company who franchises. I was given no policy documents, no training etc.
A few more years later I am accused of breaching the policy of the ORIGINAL company that now franchises the business. I wasn’t aware these old policies still applied as the business has changed hands and all other employees are also breaching this same policy.
I was suspended and invited to a disciplinary meeting. I was told I could have a representative present. I requested someone from the HR department in the original company as I wanted someone experienced.
I was clearly told I cannot have this as I no longer work for original company and that the franchise owner is now my employer and I must choose someone from within the franchise. Although the manager and owner were leading my dismissal. I was not allowed anyone that I’m friends with outside of work as it’s a “conflict of interest” so I was left with very junior and inexperienced colleagues to choose from.
My argument is if I no longer work for original company and cannot access their HR how can I be held to their policies? Surely they no longer apply?
Do I stand a chance?
OP, from the limited info you've provided, this sounds quite complex. My suggestion would be to get in touch with ACAS as soon as possible. Have you had the meeting? Do you have all the paperwork including the disciplinary investigation and the disciplinary hearing?
Gross misconduct is generally fairly similarly defined across businesses and any definitions are not considered exhaustive, as it's impossible to predict all possible scenarios in which someone would be guilty of gross misconduct.
It's very hard to say without more information, but my strictly amateur take is that if what you did could be reasonably considered gross misconduct then all this business about policy validity and whose policies apply is irrelevant. If people looking on would reasonably consider gross misconduct to have occurred the company can reasonably seek to dismiss you for it.
It would be pretty unusual for something that is classed as gross misconduct in one company to be acceptable in another- GM offences tend to be of the kind of seriousness where you shouldn’t need a specific policy to know not to do it. Are you able to share what actually happened?
It’s genuinely something that is gross misconduct in one company and not in another, it’s also a very vague policy with lots of grey areas.
Basically it’s a mobile phone store, we are allowed to apply a family discount for family members. Original company had a policy that family member is anyone who is a “direct” member of your family. New company has never clarified this policy but in the years I’ve been there employees and have given discount to cousins etc.
I applied the family discount to my step dads account I have been fired as he is not considered “direct” family and to apply a discount to anyone else is gross misconduct.
But that’s only clarified in the policy of the original company. Plus what legally is direct family? I would consider a step dad as closer family than a cousin but apparently not.
If you don’t believe the original policy applies, under what policy were you applying a discount? If it’s only the original policy that specified direct family, on what basis did you think you could apply the discount on a wider definition? Is there a new policy that allows a discount on a wider basis?
Just as a general point, terms and conditions of employment transfer over under TUPE, which means obviously anything in your contract or any policies which are contractual. If this policy wasn’t contractual, it doesn’t automatically apply, but if you had no reason to believe that policy applies, you’re going to have to be able to explain on what current basis you felt you were allowed to give your step-dad a discount.
The new company also has a discount scheme. When they took the company over they brought with them their employees as well who all have been applying discount etc. They have received a policy for the new company with the discount scheme when they first started. I didn’t as I was already working at the store under the old company. They say it is only me who is bound by the old terms when I asked about other colleagues putting discount in cousins etc. They say because I was employed by old company firstly I have to follow their policies whereas everyone else was employed by them so follow the new policies which state family discount but don’t state how close a relative they have to be. They say that as I am bound by the “direct” family policies applying discount for my step father was gross misconduct. Hope that makes sense, it’s very complicated.
If your stepdad is married to your mum then he is a direct member of your family, through the legal union of marriage. If by direct family they mean a relative with which you share a genetic link then it should state so in the policy. Also if you were not aware prior to this what the remit of direct family was meant to include as the policy is not clear then they bear some responsibility for that.
Hi, HR here, if your employment was terminated, you were issued a p45 & new contract, then your terms & conditions should be in accordance with your current employers policies. The only circumstance that they could apply previous company policy would be if you transferred uNder TUPE and retained your original t&cs. As an aside, it seems odd that you were terminated (p45etc) and then re-employed by new company since if your job didn't actually change I'd have thought (without knowing all the details) that TUPE should have applied & you should have transferred with your t&cs
I agree on the tupe point.
Also if married I would say that a step dad was direct family.
wannabebear* it's perfectly normal to be issued a P45 and new payslip under these circumstances - you are moving over to a new employer and therefore a new PAYE scheme. It doesn't necessarily affect length of service as long as it is stated in the contract.
OP under the discount policy, was there any procedural scrutiny that needed to take place?
For example was it necessary for line management/someone in authority or the finance dept to review and approve the transaction of you purchasing the phone at the discounted price?
I can't imagine a scenario where a member of staff would be able to independently complete a financial transaction of that nature without oversight from a more senior member of staff to ensure the right % discount had been applied.
Two gross misconduct scenarios I can think of are (2 is weaker than 1):
1) If you transacted that discounted purchase with no authorisation or oversight, if the policy stated that was the procedure;
2) if you falsified the transaction by declaring the person was "my father" when you ought to have clarified they were "my step-father".
It sounds like they might be trying to find a reason to get rid of you, they've found an irregularity in this transaction as their reason to throw the book at you. They've now put the onus on you to prove your innocence, hoping you'll give up and go away, and tried you up in knots with complexity around legacy policy/new policy etc.
I strongly recommend legal advice, providing them the full facts around how the purchase was transacted to determine if you were in breach of the policy, and the timelines around your transfer from legacy to new company, and how other employees were being treated, whether they were inconsistent in how they applied the policy to you and not others - if you can take along the policy documents that will save time.
There is no managers approval needed to apply the discount no. You simply click a button that says employee discount and it automatically applies the same discount that all family get. There is then a box to write the relation. I wrote step-father.
He is not married to my mum no, however they have been together for over 30 years and has raised me since I was 3 years old.
I also think they’ve been trying to find a way to get rid of me. I am paid at a higher rate due to matching my previous pay and now they are hiring everyone on minimum wage so they probably want to save some money.
As they are not married he is your mums boyfriend not your step dad. I think you will struggle to include him as family. Emotional connection aside.
Is their issue that they are not married therefore not legally your stepdad or because he's not your biological dad?
I can see why it's gross misconduct as legally he is not your step dad - he is no relation to you at all, let alone a close relative. How did they find this out though?
Would have been OK, under their wider new policy for everyone else, to give a discount to a stepfather?
Do they know your mum and step dad aren’t married?
They could get you on the technicality, now you've clarified that they are not either a blood relative or a relative through legality of marriage. Not saying it's fair, but if they're looking for a reason, that's what they will argue. They would say you falsified the record.
You should argue that they must be consistent with you. If your contract stated that your employer is not the legacy company, then the discount policy should be whichever company is on your contract. It cannot be the legacy company if you have a p45 which closes off your employment and your latest contract shows a different employer name on it.
A solicitor should assess all the facts and confirm where you can take this. Likely they will try to get the gross misconduct converted to a resignation, for the purposes of giving you a clean reference so you can seek new employment without your employment record being adversely affected in future.
Unfortunately, however you feel about him emotionally, he is not your stepdad, nor an actual relative (ignoring the debate about 'close' relative which isn't even a factor really). He is not linked to you by blood or marriage.
If there's no marriage then you're not related at all. I agree that a stepdad would be closer than a cousin, but that's not relevant here.
I'm amazed by such a fuss over what is presumably a small discount. It does sound like they taking this as an excuse to get rid of you.
OP, get proper advice. Do you have legal expenses cover with any of your insurance policies? They will usually cover employment disputes.
If not then I would start with ACAS.