DH has been dismissed for gross misconduct... what next?

[carrottyjuice]

Hi all, I really hope someone can give us some advice. I'm a bit of a nervous wreck at the moment. I've been a SAHM for 11 years, with 3 DCs. Having had my first child very young, I have had little work experience, and all of them in entry-level positions, so don't have a CV to speak of. We've always relied on DH's income, which was decent enough, but today things changed, as during a disciplinary meeting, he was dismissed straight away for gross misconduct.

This was due to an incident where he failed to inform his manager of an issue as well as deliberate falsification of documents to cover up the issue. This was when he was made to work 9 days consecutively without off days, and on that particular day, he worked for 24 hours (yes, 24 hours) and was so knackered at the end of that, that when the issue arose, he chose to falsify records so he could come home to catch some rest.

He admitted all the charges against me and stressed to the hearing that he was overworked and tired when he made the mistake, due to working an extra night, weekend shifts and call outs without overtime pay due to a colleague being on long term sickness. These haphazard working hours have been going on since his colleague went off on sick leave round about a year ago.

They dismissed him today, reason being a breakdown of trust, as he was a supervisor. He's read somewhere that if he is dependant on drugs, they can not sack him but must get him into rehab while allowing him to keep his job. He has been a regular cannabis smoker for the past year since his job shift patterns changed to accomodate his long term sick colleague, because he was so stressed out with all the extra work, he needed help to sleep.

It's not the right thing to do, I know, and he feels really remorseful for the way things have turned out. Not that the cannabis was a main reason why he did what he did, but it could have played a part. He's wondering if he could appeal his dismissal raising the cannabis dependency issue as a reason, and thereby have a shot at keeping his job, while he actually goes looking for a new one? He has not been happy for the past year. Our family life has suffered a lot because he was always on call, doing shift work (when he shouldn't, because his contract states his job hours should really be 9 to 5 Monday to Friday)...

Do you think he has a chance of winning his appeal and keeping his job and getting rehab from the company?

Do you have house insurance? You might find you are covered for a certain amount of legal representation through that.

The startup loan scheme is repayable but is now applicable to all ages. There will be a provider covering your area. What does he want to do?

He has contacted ACAS. They didn't tell him anything he didn't already know. He's thinking of doing pest control business.

I'm really worried now because I just heard that if he was sacked like this, he may not be allowed to claim JSA for a number of months.I might be able to claim on my own as a single claimant. Housing benefit won't cover the rent in full... we'd be nearly a hundred quid short. I am so so stressed out... I don't see myself being able to find work for a long time with my CV like that.

So sad as well... I feel like my kids have been let down.

He told me he doesn't want to find a job in that industry again. He was so stressed by it all. He wants a career change. So I think we'd be more hard up in the long run.

Have you got home contents insurance ? If you have check your policy you may have a 24 hr legal helpline give them a call

But I suggest you let your DH make the calls because there may be questions only he can answer

Afair from my time at cab, employment lawyers give the first half hour free, and certainly unfair /constructive dismissal is undertaken on a no win no fee basis.
Not sure if this constitutes that type of case, but a lawyer will obviously tell you.
Definitely worth going to cab in the first instance; they won't give legal advice, but will give you some idea of your DH's rights and point you in the right direction - also set you straight on any dodgy 'rules' the emps try to fob you off with.
Might be worth re-posting on the employment board as well.

1. Check your household contents insurance, or call them up. Many house insurance policies include legal fees. If it does, consult an Employment Lawyer.
2. Was the whole disciplinary process handled in line with the company's policy? Did he get notice of the meeting? Was he given the chance to have someone accompany him to the meeting?
3. Was he given a copy of the policy and details of how to appeal and within what timescale?
4. In his appeal has he detailed the hours he worked, any mention he made to his managers of being too tired to take on extra shifts? The hours he worked were probably ilegal, and certainly break Euro regulations, but I can't be more technical than that.
5. In his appeal did he challenge any estimation of the impact of his actions? i.e was there any threat to H&S in the incident he didn't report? Any financial loss or loss to customer reputation? Or other really serious consequence? If not he should argue that the incident was not of sufficient seriousness to warrant summary dismissal.

Oh I do apologise you already have posted in employment - sorry.

I've just found out that the way he was sacked meant he won't be able to claim JSA for a number of months. Not only that, I was told by HMRC I won't be able to claim any child tax credits until April 6 because he earned enough for this financial year to qualify for child tax credits. I'm so worried about how to make ends meet if benefits are not enough. It won't be if I just apply for JSA alone. HB only pays out a h7here's quid less than our current rent.

He falsified a figure of a product which is legally required to be present in the company's manufactured food. Basically they had run out of that product but he falsified the figure to say they hadn't, so in effect he allowed the factory to keep producing food products that were without that ingredient. It's a type of vitamin I think. So I think on a way the company has grounds for sacking him. But the way they did it was heavy handed, as his previous boss allowed that to happen under stressful conditions. His other friends in the industry also were shocked he was sacked like this for this reason. It is not something every company would do. But clearly his company didn't like him anymore so they did it.

It's just shocking. He gave his job his all for seven years. Only one sickie. And never complained about the hours worked. Glowing appraisals every year. They thought he was so good, they even offered him a promotion of a managerial role down south 2 months ago. He refused the offer and then weirdly, his work shift patterns became very very hectic, leading up to what happened that got him sacked. I think he pissed off someone higher up by refusing that offer. The director.

Sorry for the typo, meant to say earlier on that HB only pays out 100 quid less than our current rent.

He was given notice of the disciplinary meeting last Friday. So the meeting was on Tuesday this week. He had like 4 days to prepare.

He's already sent off his appeal now. He emphasized the point that he had seven years of good service to the company, was a valued employee according to his past appraisals (he even has letters from the company in the past thanking him for his no sickie record), being offered a managerial post by the company 2 mths ago, , and yes he stressed again and again even during disciplinary meeting that he was overworked and tired from the work schedule.

But they said that he had shown his agreement to the work schedule by working these long unpaid overindulge hours for months... and they say this is a legal thing that covers them. I suppose the EU working directive doesn't work then in this case. This company is a rich big MNC. I would think they would have made sure their backs are covered before doing this.

Did he sign a document agreeing to work longer hours than the maximum average of 48 per week (a formal op-out from those rights)? Has he been working longer than that on average over the last few months? They may also have breached the Working Time Regulations rights to breaks.
Irrespective of that, what he did was partly caused by exhaustion due to working very long hours. It doesn't matter whether they were contractually entitled to make him do that or not - it was a health and safety issue and affected his behaviour and in deciding to dismiss him for what he has done they need to be able to show that their decision is reasonable in the circumstances. It might be embarrassing for them to have to defend an unfair dismissal claim in the tribunal in which the very long hours are a focus. So I would really stress the long hours and exhaustion point.

He falsified a figure of a product which is legally required to be present in the company's manufactured food. Basically they had run out of that product but he falsified the figure to say they hadn't, so in effect he allowed the factory to keep producing food products that were without that ingredient.

That does sound pretty serious tbh, and potentially exposing the company to prosecution.

In terms of opting out of the WTD, you can only opt out in respect of average weekly hours, you can't opt out of your right to breaks, to the extent that you work 24 hours straight. I agree that the hours is his best defence but if he's done something that serious I'm not sure it's going to be enough for a successful unfair dismissal claim.

Oh dear, that falsification sounds extremely serious. I honestly don't think there is much hope. His best bet is probably the company fearing the publicity of an unfair dismissal claim, so keeping him on with final warning to avoid it.

The falsification is very serious as you know. As well as the appeal you might want to consider putting in a grievance under the company grievance policy. Get advice on it referring to the long hours, unreasonable & stressful workload might indicate a culture of management bullying?

opting out of the 48 hour week is possible, but the opt out needs to be in writing. Did he sign something? Because if not, they cannot claim that he has "shown agreement".

We just called a no win no fee employment solicitor and they said they'd call us back. We can't afford a lawyer at this time.

Definitely management bullying to some extent. A workmate who offered to accompany him to the appeal has now pulled out of his offer out of fear of trouble... as he had trouble before doing the same thing.

Really at a wit's end. My husband said there are similar jobs in Ghana and Middle East he could try applying for. But I'm not sure if financially we would be better off going to these places. But any job is better than no job right?

His company has told him already that there is some legal stipulation that if he worked those hours for a period of time without complaint, then it means he agreed to them. Another problem is that there is no clock in system at work so it'd be hard to show that he was in for so many hours. There is a call out sheet which details the number of times he's gone into the workplace out of hours to work overtime. That could prove a little of how much overtime he did, but even his employers took that sheet off him during the disciplinary and never gave it back. No idea how to get it back again. Maybe if there is a tribunal , they will give it back.

I'm concerned about going to tribunal. Will we end up losing money doing that whether we win or lose? And will it affect his chances of employment in this line of work afterwards? Is it worth going to tribunal for, basically?

There are now quite high tribunal fees. From what you have said, he might not win, and if he did his compensation might be low (due to his bad behaviour). That does not mean that he can't give the company the impression that he will bring a claim if they don't reinstate him. Whether he agreed to the hours or not, they should take into account his exhaustion in deciding whether he should have been dismissed for what he did. And they should not have made or encouraged him to work ridiculously long hours which impacted on his health and the quality of his work, and which may have broken Working Time Reg rules (he can't have opted out of any of those unless there was some agreement in writing).

Agree with flowery. That falsification could have serious implications for the company.

There are often special funds available and so on with benefits. Speak to CAB to check if any are applicable for you. Maybe call your benefits centre (you will have been given the number when you applied for JSA) for guidance too.

Check entitledto.co.uk too.

The no win no fee solicitor called back and said it doesn't sound good. So I guess our chances of winning the tribunal is slim.

I'd suggest:
Put everything you can into the appeal, stressing the long hours and the impact on his health and concentration and judgement. Also past good record and commitment to the company, and regret for the mistake that he made. Let them think (without being aggressive about it) that DH will have to consider tribunal claim if not reinstated. Ask for reduction in penalty to a final written warning.
If he is not reinstated, let this go and move on.

I'm thinking of calling his manager to beg for him to get reinstated with a much much lower pay, day 20k a year. Even a demotion.