HELP Fired for Gross Misconduct, can anyone help?

[Henrysgone]

NC because I am going to be recognisable with all my other comments and threads.
Well, I've been a bit stupid, naive, flippant etc.

Trying not to give too much identifiable information but I work in an area when one main employer is paying your salary by "leasing" you to different projects. Usually, you are always employed but occasionally, you might find yourself with no work but you still get paid and wait for the next project to arrive. By being employed like that you don't get paid as much as working alone but for those moment with no work, it's godsend to have a steady income.

I found myself in december in such a position. No work. This took over 7 months to find me something to do and in the meantime, I was connected to both the internet and having my emails so I didn't think it was necessary to go to the office every day and sit around for 9 hours doing nothing. I thought if something comes up, I will get a call/email and go in the office. I used to go in the office every other day for a few hours just to be seen.

And this is where the gross misconduct comes. According to my contract I should have been in the office for the whole 8 hours and they have gotten proof via the log-in/out system it exists at work that was not the case. Since this has been going on for months, it is classed as gross misconduct. Their argument was I didn't ask for work and was not proactive therefore I fell under their radar. My argument is they did it on purpose as it was said in a meeting that they "were surprised I had not left yet". My work has meet standards (and a few of them I exceed the standards) all the 10 years I worked for this company.

Now, my hearing with HR and my representative is for this week. I was caught of guard so I asked if I resign to have a clean record to find another job and not be unemployable. They can't guarantee that. But when I check online, poor timekeeping is not gross misconduct and it's their fault, nobody stopped me earlier.

What could I do. While this chance has been truly screwed, I want to preserve my name. I have a decent career and a family to feed and can't throw it all away if I become unemployable.
I am distraught right now as this is not how I envisage my life to turn.

namechanged how arrogant you are. OP owes this thread nothing.

I don't understand why people think the company are in the wrong because it has happened for so long? If someone had been stealing for 2 years from you which you could argue the poster has been doing in this case by taking wages she has not earned by not going into the office for the required 8 hours a day would you turn around and say sorry don't worry about the thousands of pounds you have taken from us we should have noticed earlier or would you sack them and report it to the police? Also seriously I don't believe the op has spent the last 7 months constantly checking her emails for 8 hours straight, she must have been doing other things which where probably nothing to do with work?

FYI if you are thinking they are doing this because they don't want to pay the op any redundancy pay she hasn't done any work for 7 months so I would count her salary for the last 7 months as redundancy money or at least free money!

Does anyone seriously think they had work she could have done and they just didn't bother asking her or realise she was available? Far more likely is that they were hoping that something would come in that she could be used for. (These sort of companies make huge amounts when they send someone out on a job. That's why they are happy to take the hit when there isn't any work.) But now they've realised that there just isn't the quantity of work coming in so want rid and this is a convenient reason to use so they don't have to pay redundancy.

Who is in charge of you? Who manages your assignments? Did you have regular discussions regarding your work/availability? It is not your fault if this person has not reassigned you. However, in your position I would be in their face regularly asking what next. Sounds like you slipped through the cracks and now they have just noticed they are paying for nothing. If you did all this and nothing was assigned and you could see there was nothing you could assist with, it would not be unreasonable to not go in. Effectively you have been overlooked. However, you should have informed HR that you were going to wait it out and got their agreement. Sounds like they are looking for a way out but check your contract re disciplinary process and get some advice. You could push for constructive dismissal if they did this to get you out of the door (their comment indicates this).

OP did get given something in July she said.

This isn't entirely the OPs fault. It does feel like constructive dismissal to me.

My dp has just said to him it sounds like they want rid of her as there isnt the work so if it was him he would be seeing a union/solicitor regardless of timekeeping as theyve had months to deal with that.

From your reply, I would say the most important piece of information is that they gave you work in July - so they absolutely knew you were available and allocated work to you when there was work available. You also maxed out your training so it's not like you've been hiding and doing nothing. I would absolutely be fighting this with the help of a lawyer. At the very least I would want to get redundancy or a compromise agreement (I've had to do the latter once myself, stressful but worth it)

Do you work for a Big 4 or in law? It's easy to be benched for a couple of months. But 7 months? I'd have been in and chasing my Partner for work.

As for references they usually only say when you started and when you left. Big companies (assuming you work for one) are often too scared of legal ramifications.

Personally as a Partner I'd be pretty peed off if you'd not been emailing me weekly to ask for an engagement. I expect my staff to check in weekly, I'm busy but have someone to check my emails and I'd know if someone wasn't logging engagement time against a SAP code (as opposed to non working time) as I wouldn't be approving them for billed hours.

You need to give more info on what you do if you want help. Otherwise seek an employment lawyer.

Do they have an absence/timekeeping policy? They should do and not turning in would normally be subject to several stages of disciplinary action before dismissal. If they have not pulled you up on it and given you a chance to correct it then it sounds like unfair dismissal TBH. Consult with union/solicitor. During previous periods with no project were you more proactive at seeking more work? If not and you can prove this then I don't think they could use that as an excuse this time.

Depends on your employment contract really. As I said more info is required. In a normal 9-5 then disciplinary needs to be followed. If you're a contract associate or a NED the rules differ greatly.

Is it not classed as garden leave? When I was on garden leave for six months the one time I went in people looked surprised. However I was supposed to be "available to assist with short term projects". I mentioned this to a colleague who said they'd wished they'd known as they'd been snowed under. I would question HR as to why no one contacted you to enquire why you had not been in the office in the first couple of weeks. You were basically working from home in that time and no one called or emailed you to say you needed to come into the office. I would expect a warning, even a written one, before waiting seven months to sack you!

A very knowledgable and successful employment lawyer friend told me, that often his client is 'guilty' of whatever they are accused of, however if the company fails to follow the correct procedure than a claim for constructive dismissal will almost always come off. The employer has more obligations to ensure that they have handled you appropriately, than most employees realise.

Morally it doesn't make any difference who was right or not. If you are not guilty of gross misconduct then you are entitled to notice. Being paid for a non working period is irrelevant. Holiday pay is still accrued and you were not in a notice period, so you are still entitled to any notice period payments as outlined in your contract. I also am surprised that they have gone straight in for a gross misconduct charge. Most companies would not want the hassle of any disputes, appeals and investigations. Discuss the possibility of a 'without prejudice discussion' with a lawyer. It could help you come to a mutual agreement regarding a pay off and a 'clean slate' ending for everyone. I would also highly, highly recommend making a DSAR request. To get to this stage they would have had internal meetings. Someone might have said something rather damning on the record in error which would support any constructive dismissal claim you might make.

I hope you have spoken to an employment lawyer now. Go through your contract with a fine tooth comb. There is a high chance they haven't bothered to read it and phrasing is key. People also get scared by how much a lawyer will cost and they may we'll be relying on the fact you won't defend yourself.

You were basically working from home in that time

I think that's the issue, she wasn't working from home, I think that's what she means by they have stated she was not logged in and they have evidence from the company system. She neither went to the office or logged in. The fact she has internet and emails is irrelevant, we all have those.

pollymere - the OP said that she popped into the office every few days, so it would have taken much much longer to notice that she wasn't actually doing any work than if she was completely AWOL

Sorry op, i think you're in big trouble.. having no work and not flagging
It officially for 7 months is GM. I would be shocked if they offered you any form of a reference., but maybe you might be lucky.

OP, I'm sorry to tell you, but to succeed in an unfair dismissal claim you'd effectively have to demonstrate that no reasonable employer would have taken the decision to dismiss in those circumstances, which is going to be virtually impossible on the facts presented - you were in fundamental breach of contract, both an express written term and an implied term (to perform work!) which entitles your employer to dismiss you. Even if you demonstrated procedural irregularities, chances are that your employer will argue that even if a fair procedure was followed, the end result would be the same, which would kaibosh any compensation even if you won.

Your best bet is to find an employment lawyer and get them to write a letter (as a formal grievance) asserting that the company was in fundamental breach of contract prior to your own breach, as they failed to meet their implied contractual obligation to provide you with work. You'd have to argue a constructive dismissal scenario. If you can put together a reasonable case to throw theirs into doubt, you can then look to seek to negotiate a settlement agreement (which used to be called a compromise agreement) with a reasonable reference.

If you don't have the funds available to instruct a lawyer then I'd be preparing for the worst. Any reasonable employee would be chasing their employer for work - I know I would if I even had a quiet hour, let alone 7 months!

Read your contract. If you should've been in the office they should given you a verbal then written warning. Speak to ACAS.

Read your contract. If you should've been in the office they should given you a verbal then written warning.

How could you possibly know that to be true? You don't.

OP, I used to do a similar job and quit to go freelance. The contracts are crystal clear in these sort of jobs. You must be at the office unless you get an exclusion email signed off by the HR which allows you to work from home during bench time. At least that was how it was for me and all of my friends. Good luck, but it is unlikely that you would come out on top.

What were you doing during the few hours that you were in the office every other day?

amazing situation from both employer and employee - and if 'that's how it is' - it's still amazing

you were in fundamental breach of contract, both an express written term and an implied term (to perform work!)

If what you said was correct she would have been breach of contract sitting at her desk all day.She can't perform work if she isn't given any! so that is bollocks! I think there is an argument to say that turning a blind eye to her being at home most days for 9 months has implied a term that this is ok!

According to your contract you should have been in for 8 hours a day....maybe you should have read your contract at some point. Perhaps in the 7 months you did nothing? How can you honestly believe you were in the right? As you said yourself you used to pop in to show your face so I'm guessing you knew that you should be there or why bother? To be honest as it is in your contract that you should be there and you were missing for the best part of 7 months I don't think you have much of a case regardless if there was anything to do or not.