Gave notice today, then (possibly) accused of gross misconduct

[yesihavenamechangedforthis]

DH works as a contractor through his own LTD company, so invoices for the work he does.

He took on a contract with a large retail company, which normally employs people as employees.

He has been there a few months and has been miserable, really horrid environment. He is never like this having worked in a range of places some great some bad but nothing that affected him like this.

Yesterday he had a day off sick, again rare thing but tbh I reckon it was the stress getting to him. He has not had any other days of sick. He went in today and by lunch time decided the environment was unbearable and handed in his one weeks notice as per contract.

As he had been found the position via an agency he informed them, all was fine at this point. He explained to agency about his issues with the contract and asked to be put back on list for other jobs. He was asked to leave rather than work out his notice (this rang alarm bells for me but he says it happens on occasion to stop people stealing data etc).

Having left the building, he spoke to agency again who suggest that the company are trying to suggest it was gross misconduct (nothing mentioned to him about this). That he must have attended an interview yesterday and that is why he wanted to leave (presumerably the gross misconduct would be pretending to be sick to attend an interview).

There was no interview, he spent yesterday in bed, the situation was just so bad he was willing to leave without a position to go to. The way he works this wont be an issue, sometimes he goes straight from one contract to another sometimes there are gaps.

Can the company wriggle out of paying his weeks notice? TBH at this point we think so little of them it doesn't surprise us but more importantly can this be put down on their records as gross misconduct? Surely there would need to be some kind of meeting where they discussed the allegation or provided some form of evidence (they can't as it didn't happen!)

Sorry if this is too long, just trying to get all the relevant details in! And have namechanged for obvious reasons.

Apologies just reading back it makes it sound like he works in retail, he doesn't. The company is a retail company and as such are very geared up in that respect. The work that needed doing is not related to sales in anyway but they seem to be trying to use the same model of working, this hasn't worked and is causing huge problems and possibly will cause the project to fail.

Hi, sounds highly dodgy - suggest he has a look at the ACAS website, good advice there about the law, your rights and procedures.

You might also want to post in legal (maybe linking to this thread) to get some advice.

I have no expertise in this field but, wouldn't the employer have to prove that what they are saying is true? As it's completely made up, they wouldn't be able to, would they?

Or maybe I'm over simplifying things again.

Did they ask him to attend an interview though? And he pulled a sickie instead? (I know he hasn't told you that, but sometimes these things happen)

It's reasonably common not to have work your notice if the company would rather get shot of you for whatever reason (and the security stuff too if there is an element of mistrust for some reason). Also if he came across extremely unhappy and they let him off working his notice (I did the same thing - I handed in my notice and left the same day, but the company were lovely).

It sounds odd for everything to have been rosy from their pov and then try for dismissal when he's already walked anyway... Why would they bother? For the sake of paying him his week's notice? Sounds like an awful lot of bother on that score... Something sounds a bit weird.

So he's been there a few months, not employed by them but working as a contractor?

This isn't a question of disciplinary hearing procedures. This is a dispute about notice pay and whether or not they are entitled to ask him to leave immediately and not pay notice.

What does his contract with them say about circumstances under which notice will not be paid?

There was no interview (they are suggesting with another company, nowhere specific though, for a new job). If he had been offered an interview for a job he would have gone for the interview (arranged at an appropriate time or having booked time off or whatever) as he was hating this job. He was at home yesterday (I am off for school holidays).

He has been clearly miserable at home, I'm not sure if this is apparent at work.

What prissy says about sounding odd is exactly what I thought, why would they bother?

I'm wondering (hoping?) it is one person ranting at agency because they do actually need someone to do what dh does and the management of this project is clearly not going well.

Just seen your post flowery, will have to check contract to see if its mentioned and get back to you.

Are they accusing him of pulling a sickie to go for an interview at another company?

I assume that you can vouch for the fact he didn't do this and was in fact at home?

I would have him write to them on headed paper from his limited company stating that he took a day off for genuine sickness and if they have any accusation otherwise they need to state it in writing with evidence. Otherwise he will be expecting his payment on his usual terms. Send a cc to the agency.

As flowery says - this has nothing to do with employment law. You need to get your mindset away from gross misconduct and disciplinery procedures.

It's a pure contract law question. Did DH's Ltd company (i) meet all of its contractual obligations; and (ii) give notice in accordance with the contract.

Presumably the retailer is saying that he didn't meet his contractual obligations in some way (either through not giving notice in accordance with the contract, or through some other breach such as delivering work below the contractually agreed standard or attending an interview with another customer), in which case they may try to stop payment of all outstanding invoices rather than just the week's notice period.

TBH, it would be unusual for a contract of this type to include provision for your DH to invoice the retailer for the day off sick, or for the retailer to be able to prevent your DH from doing work for other customers of his Ltd company.

Depending on the sums involved, it might be worth consulting a solicitor.

It's not solely contract law though. It's also potentially badmouthing him to the agency.

Oh, interesting thought. I know virtually nothing about that area of law - could it be slander, do you think?

I would imagine it would be defamation of some kind - but you never want to go anywhere near legal action on those grounds. May be worth seeing if there's some way of pointing it out, however. HR usually know the risks of giving bad refs - I know he's not an employee, though, so how you draw it to their attention I'm not sure.

As long as his terms of business with them say termination is on a weeks notice he will be entitled to invoice them for that week. If they don't pay he will have to sue for breach of contract. As others have said "misconduct" is a red herring since he's not an employee