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Is this a case for gross misconduct?

15 replies

seshi · 14/02/2011 15:18

Hi last week my employer suspended me on full pay as they think I am working for third parties in company time. They have pin - pointed two cases and are using emails as evidence. One is totally wrong and I have evidence to prove this but I am concerned about another. I have just started helping my Mother in laws restaurant with marketing. This has all been done in my own time and from my own email address. All I have done is send one email to another company asking for some info on behalf of my mum in laws business. In an unreal coincidince my boss has got hold of this email and is now using this to try and sack me for gross misconduct. What is more frustrating is I am not getting paid for helping out! My disciplinary is this Friday.
As it stands I have been offered another job which starts in May so I was going to resign in March. My new employer has been very sympathetic to my situation ( I rang him asap as I was concerned this could affect my new job but he thinks they are massively over-reacting and has assured me my new job is safe)But I can't start until May and can't really lose 2 months pay. Any advice? I was going to resign as I hate this job anyway but a family member has suggested I don't.

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redandyellowandpinkandgreen · 14/02/2011 16:06

Hello

It really depends on what business you are in and how much work time it has taken up. If it really is just one email then I don't think they would have enough to dismiss you at the hearing. If you have proof that the rest of the work is in your own time then you shouldn't have a problem. When you say in your own time were you still in your place of work? ie was it in your work breaks? Is it a conflict of interest with your current role?

If you are sure that you haven't done anything wrong and have proof of that then I wouldn't resign.

seshi · 14/02/2011 16:18

Hi yes I work in marketing so it was a similar type of work and I sent the email in my lunch hour from my blackberry (my own not companys) However there was never any chance that my MILs business would ever use my employer to do any kind of work for them. One they don;t have that kind of money (and I have not been paid, just trying to help them out) It took me about 2 mins to type and send the email I guess! I think they are trying to get rid of me. My employer has very little money at the mo (small company) and they have been telling us for a few months thar their cash flow is tight. So part of me thinks they need to get rid of one member of staff. I am happy to take a wrap on the knuckles for this and even a warning but to me gross misconduct is stealing or hitting someone isn't it?

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hairylights · 14/02/2011 16:53

As long as you are using your own equipment and internet connection, in your own time, I can't see the problem, unless you have a clause in your contract about doing your line of work outside of your job (ie: like an exclusivity cause).

coatgate · 14/02/2011 17:00

If it was your own equipment I can't see how it can be gross misconduct. Interestingly we have just been making a few people redundant and have been doing lots of research about how to get rid of people. Common consent among employers is that it is virtually impossible to get rid of someone for gross misconduct, even they are found with their hand in the till. Unless the employer ticks every box, crosses every T and dots every i, any tribunal would find in the employee's favour. So if I were you I would dig your heels in, refuse to budge, fight your corner, and threaten them with a tribunal if they attempt to fire you. Citizen's Advice could probably help you wit this. If you only need to hang on for a few months, just drag the whole thing out - or they may pay you to go and not cause trouble. Good Luck.

seshi · 14/02/2011 17:03

Thanks for all your messages. yes i think i will hang on just to prove a point. I am basically a decent person and don't see why i should have my named slurred or whatever when I haven't really done anything so bad. I would NEVER steal or use my company position to gain money from other sources. I was just trying to help out a family members business

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MadamDeathstare · 14/02/2011 17:05

This reply has been deleted

Message withdrawn at poster's request.

hairylights · 14/02/2011 17:05

Contrary to coatgate I'd say it's easy to get rid of someone for genuine gross misconduct where there is a very clear case, and proof.

But OP this doesn't sound like you've done anything wrong, and the onus will be on them to find proof.

seshi · 14/02/2011 17:09

Thank you - I have a letter from the company they think I have been working for stating that I not working for them or receiving any payment. Do you think I should bring this to my disciplinary? I asked them this morning as i thought I needed proof that I am not 'moonlighting' or whatever the correct term is

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flowery · 14/02/2011 17:24

Sounds like an overreaction, yes. I wouldn't resign - the only reason to do that is to avoid getting sacked but as you are in the luxurious position of having a new job lined up with an employer who knows about this and doesn't mind, there's no need to worry about that.

There will be little point pursuing them in a tribunal should they sack you - unfair dismissal compensation is based on actual financial loss incurred, so as this is likely to be a very small amount only, it's unlikely to be worth the legal fees.

Certainly fight it at the moment though, I agree, defend yourself fully and appeal the decision if it comes to it as well. Bring the letter with you and include that as evidence.

Coatgate I found this you said interesting:

"Common consent among employers is that it is virtually impossible to get rid of someone for gross misconduct, even they are found with their hand in the till. Unless the employer ticks every box, crosses every T and dots every i, any tribunal would find in the employee's favour."

I would actually turn that round and say it's perfectly possible to get rid of most people as long as you 'tick every box' etc. If you get decent advice (and follow it) ticking the boxes isn't actually as difficult as lots of people think.

seriouslycantbebothered · 14/02/2011 17:26

how did they get a copy of the email you sent from your blackberry

seshi · 14/02/2011 17:38

The other company who I was trying to get some info from sent the copy of my email to my boss. A few days after I sent the email my company started to get involved in the same project but whilst working for a totally different company that was already involved in the project. Sorry this is confusing....there was a big event being co-ordinated by a company and my MIL place was part of the event, and so emails were being sent back and quite out of chance and coincidence my employer ended up getting involved. As soon as I found this out I did stop working on the project as I didn't want there to be a conflict of interest. But it was too late as my boss already found out. BUT as I need to stress I did not get paid and was only helping out as MIL totally stressed out with her business. To be honest I was trying to do a good turn and its all blown up in my face. Just cannot believe it!
One thing I was going to ask is would it be a good move or bad move to tell them I have a new job, but would give 6 weeks notice? is tthat possible? Sort of say look I am out of hhere anyway, but still want to clear my name, but at least we won't have to work with each other?

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hairylights · 14/02/2011 17:39

I wouldn't tell them about the new job til you are good and ready.

flowery · 14/02/2011 19:14

I can see the logic, definitely, sounds like a win-win in some ways.

But I agree with hairy, don't tell them. Simply because if you allow things to just progress and your employer makes a gigantic cock-up of it, they may end up offering you some money to avoid a claim. Whereas if they know you have a job to go to they won't as they'll know a tribunal is pointless.

seshi · 14/02/2011 19:38

Thanks I won't say anything then.

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seshi · 21/02/2011 16:27

just wanted to convey my thanks to you all who answered my thread. I had my disciplinary and stood my ground but also offered to resign as long as I could take my four weeks notice. Just heard that they have dropped gross misconduct allegation to a final warning and accepted my resignation and I am now on gardening leave until 23rd March. Which means I only have 6 weeks to fill until I start my new job.
Thanks again...TBH I found it all quite worrying but your support was loads of help :)

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