Being dismissed for gross misconduct based on nasty gossip

[Vossisdoss]

Someone I used to work with, who has now moved to another department in the same company called me yesterday to say that she has been suspended, and they are investigating her for gross misconduct with a view to dismissing her.

She is being accused of taking annual leave and not logging it onto the system and also exploiting sick leave, by taking time off when she’s not sick. It looks like all of her colleagues have ganged up on her to support this. She said she can prove she logged onto the computer when they are saying she was on holiday (but they are saying she could have done this from Spain) and her sick leave doesn’t look too awful. She was signed off by her doctor for three weeks after surgery, and there’s been the odd self certified day here and there. Apparently she was seen shopping and in her garden when she was recovering from surgery, and this is what has triggered this.

She’s worked there for twenty years and is so worried that she is going to lose her job. The hearing is next week, and she said that her colleagues have essentially thrown her under a bus - eg saying she came back from her surgery with “a Mediterranean tan” and “didn’t look sick”.

She contacted me as I used to be a union rep. I’ve told her to contact her rep ASAP before the hearing. But can they do this when there is no proof?

No, quite obviously not two British.
One British and one EU.

Lots of people have 2 passports! From different countries. My BIL has a UK and a Canadian one. Lots of Uk holders have also applied for Irish passports post Brexit

Indeed. So unless this person has dual nationality then there's no reason for her to have two passports. If she had dual nationality I'd have assumed she'd have brought both passports !

Well that may or may not be true but a fairly wierd leap to make in terms of firing someone on the presumption they have a second passport on no evidence!
Massing assumptions about nationality eligibility could be considered rascist frankly

Racist? Get a bloody grip.

How about
British plus Another country?

🤣🤣🤣🤣🤣🤣🤣🤣🤣

The passport really isn’t the issue & proves nothing.
For all we know, another employee, frenemy showed screenshots of her location from social media, …

She just needs to take the company to court. Just that.

On what grounds, exactly?

Some posts in this thread didn't age well, did they.

Where are the people who swore blind that, 'you can do whatever you like when you have a sick note and it's got nothing to do with the company!'?

Some of us said multiple times that the company can, and may, do whatever they please, regardless of any sick/fit note, and even whether their actions align with legislation or employment law.

It's a bit like saying you're ok to leave your house door unlocked because no one is allowed to come in and steal your stuff.

MN is the last place anyone should come for advice on legal matters of any type.

There could also be a history of sick notes. There’s also the issue of other employees covering and cost to the company. Poor attendance is a reason to be sacked.

Poor attendance is a reason to be sacked but it's not gross misconduct and would follow capability proceedings.

If they think she was overseas, they have to prove that. Saying she must have dual nationality and has travelled on another passport is ridiculous!

And I find it unlikely that an employer would say that GP letters were wrong unless they had evidence to think they were forgeries. Employers cannot second guess a GP's diagnosis. They can second guess the fact pattern that the GP used, but not an actual diagnosis. Some schools think they can do this too - I'd suggest people stick to their own professional competencies.

If, as OP says, they have sacked her on the basis that they don't believe the doctor's note or the occupational health report, and that they think she must have two passports to hide her travelling when she was supposed to be at work, they need evidence to support those claims. If they don't have evidence (or the evidence is weak), this is a clear case of unfair dismissal. However, before taking her employer to court, OP's friend needs to exhaust her employer's appeal process.

I agree most MNers don't know about the law, but I don't think I was wrong in what I said - if you are on sick leave you are allowed to go out.

Either the employer concerned is a bit mad, or there's a lot more to this than the OP knows or has disclosed in this discussion.

Companies do have to comply with the law. Enforcing it is the issue of course.

Unfair and/or wrongful dismissal.

There's a whole lot more to this.

Absolutely. A sick note is not a trump card, as I said previously in the thread.

Case in point - a genuine example: employee on final written warning for absences has a serious car accident and is actually cut out of the car by a fire crew including a manager from his workplace (who is a part-time, retained fireman) and left with a broken leg and other injuries.

The sick note could not be more genuine, nor could they have a better witness/alibi.

They still got fired.

In case you hadn't noticed, this topic is called "legal matters". When discussing what an employer can and cannot do, we are talking about what they can do legally. Those who say you can do whatever you like when you have a sick note are broadly correct (provided, of course, that the sick note is genuine and hasn't been obtained by lying to the doctor).

You say, "the company can, and may, do whatever they please, regardless of any sick/fit note, and even whether their actions align with legislation or employment law". The reality, of course, is that, if their actions do not align with legislation or employment law (which are actually the same thing), they are acting unlawfully. That is what people have been saying on this thread.

Someone being fired for poor attendance is not relevant to an argument about what an employee is allowed to do whilst absent sick.

From page 1

what prh47bridge posted

But can they do this when there is no proof?

"They don't need proof beyond reasonable doubt. They have to genuinely believe and have reasonable grounds for believing that she is guilty of misconduct. That means they must have conducted an appropriate investigation and have sufficient evidence on which to form their belief."

So the employer either has proof that the sickness claim is fraudulent, or they don't care and are willing to take the risk of their former employee taking them to tribunal. As mentioned throughout the thread, there is probably more to this than OP knows.

It was never about passport stamps. Or having more than one passport.

Unfair dismisal- denying the validity of a sick note issued by a doctor following recovery from surgery, plus some unproven allegations on self certified sick leave. Which grounds do you suggest?
But really, that is for her solicitor to sort out and request her compensation.

If she had been to Spain her passport would have been stamped with entry and exit dates. If she was in the UK her passport will not have such stamps. So that would prove their story about being in Spain is a lie. Documents such as credit card receipts from her home area dated during that period would also give proof that would stand up in a criminal court that she was where she says she was.

@SilverChampagne they certainly do stamp passports now when you enter and leave Spain. They restarted it after Brexit to monitor how many days you have spent in the EU. I visit several times a year as DM lives there. Causes great long queues at passport control.