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.

OP is there not a clear policy in place for what you should do between projects? I used to work for a large consultancy and the rules were very clear in these circumstances - you had to spend one day a week in the office, for a full day.

Did you inform anyone of your decision to wfh most of the time?

Do you have a line manager or do you effectively report to whoever runs the project you are on, and so slip between the gaps when there is no work for an extended period?

Is it possible there was a project in the wings which went away, leaving you surplus to requirements?

It sounds to me like your employer has structural or procedural weaknesses if these processes are not in place. As others have said, your next step is ACAS / employment lawyer.

It sounds like you work in IT and were on "Gardening Leave"; I'd take legal advice. I would have expected your manager along with the HR department to equally be proactive in ensuring you were not "On the bench" for a period as long as 9 months and assign you to your next project.

I think the biggest thing here that stands out to me is that your employer have not seemingly taken you aside for a formal meeting prior to this and advised you that your absence is not acceptable.

All companies should have at the very least a performance management process that is in line with ACAS guidelines. If they’ve let your absence slide for several months without mentioning to you that it’s unacceptable, then you have cause to argue they haven’t followed correct process, if their own process states that they should do this.

Yes they could say you have breached your contract and that you should’ve checked yourself (and you should’ve rather than assume) but they should be following a proper process in how they deal with that and ideally they should’ve advised you of the issue long before this point in time. If unauthorised absence is an issue then most professional/decent companies would call that person in for a meeting to discuss it to ensure they understand what the expectations are, find out the reasons for the absence and give a formal warning and the time to improve that absence. So if they’ve sprung the GM on you for absence out of the blue, I’d be looking at why they haven’t had a discussion about this with you earlier to establish why the absence was happening and given you time to rectify it.

** Sorry that should’ve said Disciplinary process as opposed to performance management

This type of situation isn't that rare, I think some people should cut the Op some slack. I know of several people, including at my previous work, where projects didn't align at the right times and they were sent on gardening leave. Fully paid but not expected in the office for days/weeks, sometimes months.
Very inefficient way to use your workforce but these big companies can absorb it.

First delay the meeting, say you need legal advice and for natural justice, you must be given time to do so.

Cunts

I suppose it's down to what your contract specifically says you should be doing when between contracts. If it says you have to ask/bid for work from your manager then you are screwed. In that position I personally would have ensured a paper trail of requests for work rather than just assume there's nothing on and no one minded paying me for doing nothing.

If you are employed by them, then there is an obligation on them to provide work. The cannot discipline you for them not providing work, as if they don't provide work they are in breach not you.

Any employment contract implies appropriate provision of work.

They sound like they don't understand the law.

Speak to employment lawyer or acas ASAP.

The first thing that you need to do is find out whether anyone else has done this and see how they were treated I suppose.

I am very sympathetic to the OP. I'll tell you why

there are many jobs in the world where you are on 'Standby'. you get paid, and everyone, including the people who pay you, hope you never get called into action.
e.g. firemen and soldiers and IT support.

There are many jobs where you are on standby for the next project. The person paying you knows you are being paid for doing nothing, but they know and expect that when the project materialises, you will do 16 hours a day, seven days a week.

I do a job like this. maybe the OP should have been a bit more savvy, and checked in more often. But... we do need people like this..
who can go from zero to sixty in two seconds after spending three months looking at the wall

scaryclown, are you really best placed to provide employment advice? It's not good.

I have zero sympathy for the OP! Employment laws are there to protect vulnerable employees from being treated unfairly OP is abusing her employer and being advised how to use the law to further abuse said employer.

Ex-HRD here. Just scan read thus thread. There are some grossly inaccurate posts on here. You need a competent employment lawyer. Suggest you spend your energies doing that rather than focusing on this thread.

In my opinion they want to get rid of you and are using this as a reason. OK it wasn't wise to just decide you don't need to go in without asking your supervisor first, but they could have communicated this to you months ago that their expectation was for you to still come in.

My understanding is gross misconduct is a one off really bad thing someone does, not a slow drip of many little things that you havent been given warnings for (but I'm not a lawyer).

Get some legal advice pronto as if the above is the case then it may be unfair dismissal. Obviously you won't be staying at the company but you may get a payout.

However, in future cover your back with this sort of thing, and if you've not been given a project in 7 months, it tends not to mean anything good.

Just a thought - a counter argument from you could be that your employer failed to give you work for 7 months - were they angling to get you to leave voluntarily?

You need to get proper legal advice - don't listen to half the people on here. It's not enough just to have something written in your contract - it depends what happens day to day, i.e. what has become 'custom and practice' in the office. For example, what have other people done when they've been in your situation? Have they been at their desk all day every day? Has anyone else been disciplined for doing the same as you. Did anyone at all question your whereabouts in the entire 7 months? Honestly, please get proper legal advice - I can give you the names of some good employment lawyers.

it does seem like you had a bit of a nice easy ride up til now - but that isn't helpful I realise! I'm surprised you didn't have to go in to the office and do something and perhaps should have checked that, but then a lot of people work on retainer and this does seem to be fairly usual. Do they not have to give you a couple of written warnings first? That would be my first thought and yes, a solicitor or similar I would suggest. Get them to write some of them there clever words ;-) Wondering why they would say 'we're surprised you haven't left yet'...

The OP has had the right advice - find an employment law solicitor ASAP - so I've nothing to add bar expressing surprise at the willingness of some posters to figuratively wag their fingers and tut tut at the OP for being naughty and 'taking the piss'.

She doesn't work in the type of industry where you're sitting at your desk like a good girl from 9-5 all day, every day, so give her a break. She's having a tough enough time without ill-informed criticism from people who don't work in the same environment, and acknowledges in her original post that she hasn't behaved faultlessly.

Nettletheef- I think many of us understand precisely that she doesn't have the type of job where she's supposed to sit at a desk from 9-5 like a 'good girl' (whatever the fuck that means- I mean how many of us do have jobs like that these days?!)

The point that stands out for many of us is that by her own admission she went into work regularly to deliberately be visible, therefore giving the impression she was fulfilling her contractual obligations.

Bit ironic that if her line manager had been breathing down her neck and micro managing her, people would be bleating about how you don't have to be at your desk every minute to do a decent job, and that professional trust should be there. But when she's popping in and out of work, being visible at least every other day for several hours, suddenly her managers should be logging her every move and checking up on her.

But was she booking billable hours against code in her time sheet? Or claiming 'non working time' and taking a full salary or submitting a full weekly invoice?

I'm thinking if this is the gross misconduct issue it's probably timekeeping and billing issues. If OP returns perhaps she can enlighten us?

IMHO there is always work to be done. If you're benched I can find you something to work on, even if it's WFH and come in one day a week for the weekly team meeting.

It looks like two issues. Bad management and lack of tenacity on the OPs part.

There was no work for her to do, remember? She wasn't shirking. She wasn't physically present in the office the whole time.

She said that her manager knew she was available. She was given a small piece of work to do in July. She says that when she went into the office she did some asking around for work, but if she's a grown up professional that's going to feel a bit demeaning the tenth time around, isn't it? Who's to say that she went to the office to be deliberately deceitful? She might as well be at home waiting for a project to come in as sitting at a hot desk with nothing to do.

None of us know what her precise contractual obligations, which may be mitigated by custom and practice, are. For all we know, other people in her position were behaving similarly whilst on the bench. However, sticking the boot into her now, from some perceived moral high ground and without understanding the practices in her industry, isn't helpful.

She said in her OP that she went into the office for a few hours every other day to be noticed. Presumably if she wasn't trying to be deceitful then she would have just sat at home occasionally checking her emails.
She also mentions in later posts that she knows she's in the wrong. I agree about getting legal advice and she may be able to claim some mitigating factors but frankly this job is over and the best bet is to ensure she meets her contractual obligations in any future employment

Hence I said if OP returns - I've asked twice to give a vague idea of her industry/contract type. OP has not replied.

We really don't know what the formal GM issue is here do we?

And yes, you should speak to your manager weekly if benched. It's normal, it's not grovelling or begging for work.

A weekly update and attendance at team meetings (Skype is fine) isn't micro managing. It's keeping a team in touch when some are benched.

My team dial into the daily call if benched. We tend not to talk about work (mostly personal chit chat), it's a chat for 15-30 minutes max and a chance to raise any concerns and just catch up. Maybe the OP has been mismanaged rather than micro managed?

It sounds like your manager has been grossly incompetent. That's where the loss to the company has come from.
You've acted in good faith, and the employer has correctly paid you for being available but with no work. I think you mentioned a reduced rate to be in this position? This would mean they have acknowledged and confirmed that they understood the situation. If others have been provided work, and you haven't then it would breach harassment and bullying policies typically, but what has happened is you have been attending less than they expected you to, but there seems to have been no definition of what those expectations were, nor any request for you to act differently to the way you were acting, in short it has become custom and practice for you to behave in this way when there is no work. Irrespective of the wording of a contract the law requires a contract to be considered as it has been applied, not what it says it is, and custom and practice can change the terms of a contract in a tribunal's eyes. I would try to get evidence from other members of staff about their behaviour when they are without work. One way to do this would be to raise a grievance against your manager, and call in all his staff as witnesses and question them on this, though you should try to know the answers they will give and if they are in your favour or not first. This has some risks, but a letter saying you believe your manager to be at fault, that your dismissal is an attempt to cover this up and that because this grievance outcome is material to your case, that it must be completed first. Of course you will expect full pay during the investigative periods.

This kind of approach could lever a much more favourable settlement as they won't especially want the management incompetence evidence to reach tribunal as it could become very newsworthy and hint at the company itself being financially vulnerable.

I agree that leveraging a hard clean break negotiation with legal support feels like the best overall option. Of course if they agree management incompetence then set up some new rules.. And stay employed!

I've worked in a job similar to OP's. In my job it was normal to have to go in even when on the bench unless you had explicitly agreed something else with your manager.

It was also normal that you took a joint responsibility to find your next piece of work. If there genuinely was nothing you could work on you mentored others, did training (lots of free stuff available), or helped with internal company initiatives. For all of these except online training you needed to be in the office.

I've no idea if this is normal at OP's company. But neither has anyone else on here, which is why she needs proper advice. I'm just pointing out there are lots of possible "normals".