On maternity leave, just been informed my working practices are being investigated for gross misconduct.

[Langoria]

I'm 5 months into maternity leave and having chased my employer a number if times by email since august, we finally arranged for me to work a keeping in touch day on Monday 22nd October.

On Friday I recieved an email asking me to confirm my attendance tomorrow and advising me that rather than a day catching up with my colleagues and projects, instead I am to attend a meeting as I am being investigated for gross misconduct!

Here's what it said:

Secondly, I wish to talk with you concerning the Companies investigation into your working practises prior to maternity leave. I must point out that subject to the outcome of this investigation, it may be necessary for it to progress to a disciplinary hearing in relation to an act of gross misconduct that may result in your dismissal from the Company.
This may come as a shock but I wish to explain matters that are of much concern and look forward to an honest discussion in order that an informed decision can be made.

Needless to say this has come as a massive shock and I have been racking my brains all weekend to think what it could be about. I have contacted a colleague who is covering my post while I am on maternity leave and he claims to be none the wiser.

This has all come out of the blue, as I was in the office visiting my colleagues on 1st October, and the last communication I had with my boss prior to this email was on 5th October and nothing was mentioned then. I'm wondering if it has something to do with me questioning their calculation of my smp as they miscalculated my 90% (failing to make the calculation from the qualifying period meaning they neglected to include my annual bonus, and thus they owe me a lot more money which I am due to receive in this months pay on 25th Oct)

My understanding is that gross misconduct is very serious indeed, and I am certain that I would know if I had committed such an offence. But I guess I will find out tomorrow what it's all about.

It would be helpful if anyone can give advice on how to handle this meeting.

Also, if I am found guilty and dismissed, am I right in thinking they must continue to pay my smp? Will they also have to pay me for holiday accrued to date?

If I opted to resign (wasn't planning on going back anyway) do they still have pay smp/holiday accrual?

Presumably if they dismiss me now they have the right to demand my company car back etc?

Thanks in anticipation

Ooh, I'm not sure you should roll over that easily. You should really find out if those things really do constitute gross misconduct. Also look at precedent, how they've treated this sort of matter before. The fact this has all come up now seems very suspicious, especially if they've told you outright that you won't get flexible working before you've even applied!

I think you've done the right, unfortunately the motivation doesn't change the fact that to them this is gross misconduct. You still get your amp and you were going to leave anyway.

Btw resigned pending shouldn't apply as they are still investigating, no decision had been made. Anyway it won't necessarily have a negative impact on future employment. I've seen people who were actually scaled and have had no problem getting a job. Being honest and open is important.

Hello. I think you have a chance at proving discrimination and therefore constructive ( I.e their behaviour has forced you to resign) dismissal. Or it maybe unfair dismissal I always get those muddled up. And you could use this to get an agreed reference. Check with a lawyer or expert but it would go something like this:

Dear Horrid Employer

Having had a few days to think about what happened at the meeting I believe that you have singled me out as I was on maternity leave and you didnot want me to return to work so you found things to force my hand. In the meeting I felt shocked and forced into a corner to resign in order to avoid the stress of continuing with the disciplinary procedure whilst on maternity leave.

Although I do not deny setting up my own business and for a short period of time opening personal emails at work but either in lunch times, after work or in very quiet times I do not believe it constitutes the severity of gross misconduct. Also I am as summing you have checked with all other employees that they are not running personal business or holding second jobs? I am also assuming you have assessed every other employee for use of the company email system for personal usage and that you will be taking similar disciplinary action for those employees?

As I am on maternity leave I currently do not want to put myself and family through the stress of going to an employment tribunal at present , however I am very concerned about my reference so I am suggesting that we put an agreed reference in place. This would go some way to restoring our relationship and look forward to hearing from you shortly and resolving this issue.

Yours sincerely etc etc

Just a thought to get the reference and good luck in your business!

How about, rather than "am assuming that you have assessed/checked other employees" you write "please confirm that you are assessing...."

I think you've let them get away with murder here. I can see why, and that it suits you in a way as it's no big deal, but I'm not sure I could do it.

What does your handbook say about your company's policy regards to privacy and email? Have you been shown company policy on email privacy? Company policy on what websites you can visit during lunch and after hours? Policy outlining whether you as an employee is monitored during your working hours (including lunch and after work)

They cannot really look into your email, unless yo have been shown a company wide policy that tells you that they will. Hopefully somebody with legal experience of email privacy will be able to advice you further.

not an expert, but think you might be able to negotiate a compromise agreement and get a tax-free settlement?
I think you should get professional legal advice.

Agree with HeartOfDixie's letter. I can see why you felt you had to resign but I think they are discriminating against you and the only reason they have dug it up is that they don't want to pay.
Sorry to hear it and hope you're ok. FWIW, being self employed beats working for anyone anyway :)

Well considering it to be gross misconduct working on your own business which presumably didn't compete with your employer's business might be argued as disproportionate, but working on another business in company time using company resources is pretty serious and you'd find it hard to argue against that one really, especially if its specifically listed in the handbook. Strange you couldn't think what this was about when you examined the list of gross misconduct offences earlier.

The thing that might help you negotiate something is if you have reason to believe they knew a while ago and did nothing about it, or have allowed others to do similar without reacting as strongly.

I very much disagree that it is easier to 'push you out on a disciplinary' than decline a flexible working request- that's pretty easy to do and much less risky.

You still get your SMP regardless.

Just to update you all, my employer has written to me acknowledging my offer of resignation and have suggested that it be considered as 6 weeks contractual notice rather than immediate.

in answer to the pp, this didn't immediately spring to mind as an issue fir investigation as I've been running my own business (completely non related to my job) for 3 years without any issues.

I admit that I used my company pc and internet to work on spreadsheets, flyers, blog etc and I maintain that this was mostly during my lunch breaks and after hours, however looking back there have also been occasions where I have used spare time in my working day to view and/or edit such files. As unprofessional as this may be, I know for a fact that a few of my colleagues have done/do similar, with one operating a photography business (using the company camera equipment) and another who regularly does private graphic design jobs when things are quiet, so it did not feel like I was doing anything wrong as it was not affecting my work in any way.

As it was my own business I didn't disclose it as additional employment as I didn't think it was applicable.

Having had time to think about the situation, I do think that that I should have asked some more questions during the meeting... Like exactly how did this come to light? How long have they known about it? Has my performance ever been questioned? I have had a perfect record for 6 years, and despite my being guilty of this misconduct, I strongly believe that I have continued to do my job to the best of my ability.

My colleague who has been covering my position while I'm on maternity leave claims to know absolutely nothing about any of it (and I think I can trust him) He would have definitely noticed if someone had been searching for deleted files on my computer - not the kind of thing you can do in 5 minutes I'm sure.

Thanks to your replies and a couple if hours of google research I believe that I may have a case for constructive dismissal, as they threatened dismissal as a result of the investigation against me I felt I had no choice but to offer my resignation.

In addition it was very unfair of them to give me next to no notice of the 'discussion' meeting, as far as I knew I was going in on Monday for a 'keeping in touch' day until they sprung it on me by email on Friday afternoon that I was under investigation.

I have an appointment with an employment law specialist on Monday morning to discuss before I reply to the letter. Hopefully they will confirm my findings and assist me with requesting some kind of compromise agreement.

Will keep you posted.

By the way I was only on statutory smp anyway.

But like I said before this seems to have coincided with my questioning the calculation of the 90% payments resulting in them owing me a few thousand quid!!

Going against the grain of earlier posts, I don't think you have a case for constructive dismissal.

You have admitted working on non-work things during Company time and this is clearly marked in the employee handbook as gross misconduct. I agree with flowery that setting up your business wouldn't necessarily be GM but they could certainly claim it is serious, alongside the working on non-contractual work during working hours.

They way in which they've handled it could have been better (ie you stating they threatened dismissal following an investigation; that is/was one of the potential outcomes) but that in itself doesn't necessarily prove constructive dismissal.

You stated in your original OP that you were resigning anyway and had no intentions of returning, so it makes sense to move on.

If you start pursuing a tribunal/compensation, they could change their minds about accepting your resignation and will continue the disciplinary route during your notice period, which then may result in your dismissal due to the GM allegation(s)

They can only go after you for gross misconduct if they have treated everyone else the same way. Sounds like they are singling you out. You need to negotiate compensation i the form of a compromise agreement which will include an agreed wrtten amd verbal reference.

Depending how your IT is set up they may not need to actually go to your computer. Where I work everything you look at can be monitored centrally and the IT people can access people's PCs remotely.

Can't see it being constructive dismissal. If you are accused of gross misconduct and therefore threatened with dismissal, but believe either the process or the decision to be unreasonable, a tribunal would expect you to make every effort to resolve the situation by vigorously defending yourself, putting forward the points you've made here, then if after that you were still dismissed, appealing it.

A tribunal would say that although you may have various relevant points to make in your defence, your employer was not given the chance to hear those, and may not have then dismissed you. Employment law is to a large extent about giving the other party reasonable opportunity to rectify a mistake.

Having said that, if you had defended yourself with the points you've made here, and they have been treating others doing the same thing differently, and if they then went ahead with a dismissal and denied an appeal, you would probably have been in a good position to negotiate something decent.

It as it stands, their argument will be as I outlined in my previous post, and your position is not at strong.

Thank you for your replies. To be honest I was a bit shocked in the meeting that it had all come to light so I just admitted to it (they have copies of all my files so I couldn't deny it) didn't think at the time to question my colleagues activities.

Will see what they say on Monday.

Maybe its not worth the hassle, and I should just call it a day and go quietly.

Well done, you are right to go and get professional advice. Nobody on here really knows what your position is so the right thing to do is get legal advice from an expert.
Good luck and let us know what transpires. :)

FrameyMcFrame there are professional hr consultants who have commented with no personal interest.

Yes YouSeveredHead but they do not have all the facts. Such as exact details of her contract etc. Anyway, op is taking advice from an employment law specialist, not an HR consultant. I'm not an expert but I think that getting legal advice from an employment law specialist is probably better than an internet forum :)

If it's a free employment law specialist then definitely seek further advice from that person.

However, we're not all HR consultants and the board isn't just any other Internet forum- it is for employment issues and there are several of us that work in Human Resources and specialise in this area.

I'm a HR manager who has a number of years experience specialising in cases such as these (known as Employee Relations).

The situation has nothing to do with her contract. Based on what the OP has written, I've given my pennies worth of advice, in that I don't believe she's been victimised and that she has messed up and could go through the disciplinary process to see what happens, or she could resign and walk away.

The process is not nice to go through and if the Company have clearly got evidence of the OP working on her own business- then she hasn't got much argument other than saying "sorry, it won't happen again" and outing forward that the company ensures others are treated the same way because of their business ventures (which may result in their dismissal too).

If she was an employee at my company I would reasonably argue a case against any form of grievance / tribunal if she put one forward.

If she wrote a nice letter asking for a reference etc, then I'd be more than happy to oblige.

Great advice, don't get legal advice unless it's free because someone on MN says you don't have a good case....!

I would think that what her contract states would have legal implications on what she has or hasn't done. As she said her work was not impacted negatively and that others had one similar or even browsing MN during working hours she may have a good case.

Sorry to argue on your thread op

I would think it unlikely that her contract permits working on another business in work time using work resources if her handbook clearly states otherwise.

Assuming there is nothing in her contract that muddies that position at all, and assuming the OP is right to say that others did the same known to management without consequences, then the OP may have had a reasonable case to argue had she been dismissed, and due to the maternity leave element, may have been in a good position to negotiate something decent.

But she wasn't dismissed. She did not take the opportunity of a disciplinary hearing to defend herself, put forward mitigating circumstances and explain the situation with others doing the same. A vital principle of employment law is giving the other party reasonable opportunity to put things right, whether that's an employee's performance or behaviour, or an employer's disciplinary investigation or other grievance. She did not give her employer the chance to decide whether it was in fact gross misconduct or not, or to reverse a decision at appeal.

Bypassing all of that process and then thinking there is a case for constructive dismissal isn't going to get anyone very far.

Having said all that, I would agree that anyone thinking of taking any kind of legal action against their employer should take proper professional advice from an expert in real life first.

My own view in this case is that unfortunately any strong position the OP may have had if she'd stayed and had been dismissed has been lost, and I would advise any client of mine to stand their ground.

Hi all, another update for you.
I have sought advice from two employment lawyers today. One free, and one at a fixed fee. The free one said that they didn't think i had a very strong case for anything given my activities and that I should just suck it up and move on.
The fixed fee said that he considered it to be a case of constructive dismissal given that my employer stated in his email inviting me to the investigation meeting that the likely outcome was dismissal and that I considered I had no other choice but to resign. He suggested that I could ask for a compromise agreement to prevent me from taking it further, and also to get my employer to provide a good reference (reflective of my 6 year service with them) in the future should I need it.

Having thought long and hard all evening, I have decided not to take it any further. The solicitors costs £££s just to get them to act on my behalf in requesting a settlement agreement, and if my employer won't oblige, I don't have the time, energy or resources for a tribunal.

Like someone already said, I took advantage, I got caught. It doesn't really matter how this came to light or if my colleagues are all at it.

The best thing for me to do now is make the most of my smp until feb and concentrate on making a success of my own business.

I really appreciate all if you who have taken the time to post on here. Thanks

Good update OP

framey - don't get advice unless its free i stick by this. There are some shoddy Employment Law specialists around, some that will charge you high heaven for basic advice which can be obtained from Acas or directgov.com or an internet forum Acas are extremely good, telling you if what has happened is good practice, illegal or otherwise.

I would only ever recommend seeing an Employment lawyer if s/he was free for that initial consultation because they normally will tell you straight whether you have a case or not. They will be taking money from any compensation you might win.