Gross misconduct?

[Jacflett]

Is this gross misconduct?
I am a Stewardess in a very small private social club. I have had a problem with an employee ever since I took the job on(4 years). He works 12.5 hrs a week and closes the club on a Wednesday and Saturday night. Last orders is 11-11.10pm 15-20 mins drinking up time close at 11.30pm staff are paid til 11.30 and there is only ever me by myself or when I'm not there one bar person behind bar. He has been closing earlier and earlier, i have said to him a while ago if there is no customers in by 10.55pm he can take till off at 11 and get home and he will still be paid til 11.30 but a few weeks ago a customer said he couldn't get in at 10.30 I checked til it had been taken off ar 9.35 I checked the alarm and he left at 10.14pm on the Wednesday and at 10.35pm on the Saturday. This isn't really on is this gross misconduct and how do I go about it. Can I just go in at the start of his shift and tell him to leave or do I have to give him a letter to attend a disciplinary meeting and would I have to give him a few warnings first or can he be sacked immediately?

Do you have a contract with him, I would call ACAS for their advice.

No written contract he was working there when I started 4 years ago but he wasn't on books I was asked if I would keep him on which I did as I thought it would better my chances of getting job but said if I would be paying tax and ni he would have to go on books too which he did.

I might be wrong but I think you need to have a meeting with him where you give him the evidence you have and then suspend him with fill pay until he attend a disciplinary hearing. He can bring someone to that meeting to support him or speak on his behalf. You need to provide him with the minutes from your first meeting before the disciplinary.
At the disciplinary you go over everything, get his side and then make your decision. You can then dismiss him for gross misconduct at that meeting.

That's how the process is laid out in the employee handbook of my old shop assistant job. Not sure if there are any other legal requirements.

Ok, thanks Naomi,
There is other things going on with him too (he has accused me and my husband who is a club member of stealing so I have put a grievance bout him for slander which the committee say they will deal with)

Ah, in that case you'd best make sure you have more evidence of his closing early than just your say so.

So, all the till records and CCTV of him leaving etc. Otherwise, me might claim you are doing it in retaliation. Just make sure you can prove he has been shutting up early and losing you business.

Are the committee in charge of employment and wages, would it be them he would need to have a meeting with. Who owns the actual club, have you told them what happens and do they know and are happy that he goes home early when its quiet but you pay him till 11.30pm. What is your position there, maybe he doesn't earn enough to pay tax but that will be on his records. You need to be honest on both sides, try and find out why he left early that night, was there an emergency at home, does he know who to call if there's an issue at work or if he needs to leave very early. You've been letting him go early, he may well use this as a defence.

Yes they is plenty evidence of him going home early at nearly every shift in the last two years. I told him he could leave after last orders if there was no one in but not before eleven as that is preventing members from using the club. Have just been in with a letter form him I used a template from acas inviting him to a disciplinary meeting and outlining the going home early. He said he was bored and thought that he was saving the club money on electric but I pointed out that we were losing two hours pay a week. He asked if it was something to do with the allegations of theft but I said that a I was on the receiving end of allegations it would be dealt with separately and the committee had asked me to pull him about leaving early as there have been complaints from customers who couldn't gain entry. He handed his keys in then changed his mind saying that he didn't want me to lose my only day off. I ended up feeling sorry for him even though he blatantly lied to my face and denied accusing me of taking any money from club. I was adamant I wanted him sacked for gross misconduct and I know he alienates half the members and hardly anyone comes in when it's his shift but I'm feeling a bit conflicted as what I am going to do now.

This is business. It isn't about personal feelings of guilt or of wanting to be liked by an employee who has continually flouted his responaibilites.

There is room for emotion in business of course, but that's if someone is leaving early because they need to get cancer treatment or care for an ill relative - in those situations you would work something out. But does he have a reason like that... no. He's just costing you money and alienating your clientele.

Why have you been losing two hours of pay a week, two years is a long time for this to have been allowed to happen. What happens if it's quiet, he goes home then a customer comes in at just after 11 expecting to be served last orders.

It could be gross misconduct. Failure to follow a reasonable management instruction and/or a fundamental breach of contract - effectively he’s contracted and paid to work 12.5 hours, but he’s actually working 10.5. That’s quite a high percentage of time to be claiming pay but not working when he knows he’s meant to be on shift.

You need to follow the right procedure though. You can’t just sack him even if it is gross misconduct. No need for prior warnings but you need to follow the ACAS Code of Practice and make sure your reasoning is clearly outlined in any dismissal letter.

You can’t with any credibility claim that something he’s been doing regularly and in the company’s full knowledge for two years is gross misconduct. The whole point of gross misconduct is that the conduct is so serious that it has caused the employment relationship to be irretrievably broken down; so serious that it is not possible to continue employing the person. Clearly that isn’t the case if he’s been doing it for two years without even having been pulled up on it, let alone formally disciplined.

It sounds a bit double standards that you've been telling him to go home early, pay him for hours he doesn't work, all quite happily for two years then suddenly consider it gross misconduct., I would also see it as retaliation against his allegations., who takes responsibility for him going home early for all that time.

Last orders is 11pm. We give customers 20-30 mins drinking up time and shut at 11.30, but the club is sometimes very quiet and have told staff that if there is no one in at 11pm last orders and their jobs are done they can leave. About a month ago a customer informed me that he had tried to get in to club on the Wednesday night at 10.30pm and it was locked. I said he must have been mistaken but the committee asked me to check til roll and alarm and the till hadbeen took off at 9.35pm and the alarm set at 10.14pm. The following Saturday he left at 10.35pm. The committee have asked me to deal with this, it is not me reacting out of spite to the allegations.

It sounded like a soul destroying job, probably minimum wage, you conveying mixed messages to him with a fluid arrangement regarding closing times and then after 2 years your management have decided to throw the book at him. Are they / you serious??

Also you effectively delegated responsibility to him to make a judgement call when to lock up and then haul him over the coals when he used that empowerment. It wasn't like he didn't bother showing up to work, let you down was repeatedly unreliable and was dipping into the till while he was at it.

No way is what he's done grounds for gross misconduct.

I would have a meeting, clarify the ground rules, state you recognise the situation was not clear enough and let that poor man get on with his job. If you sack him, you'll take away his livelihood and drop him in it for future employment. Do you really want that?

What he is doing would be classed as gross misconduct due to his dishonesty, if he has falsely cashed up tills and filled it paperwork before the time it should be done too this would be the evidence they needed. Also his actions are costing the business money by home closing early. Call Acas and explain the situation

@daisychain01

He has been given very clear instructions that 11pm is the earliest he can close and that is only if there are no customers in.

He's taking the till off at half 9. That is very very clearly against the instruction he has been given. Since he has sole responsibility on his closing nights, no one was aware. It has now been brought to their attention by a customer who was unable to access the club. They have investigated and now know the full extent. The next step is dismissal.

No mixed messages. 11pm means 11pm, it does not mean whenever he feels like closing.

If they've known he's been doing it for 2 years and haven't take any action for 2 years, then I feel it's a mixed message, that they have tolerated it, maybe turned a blind eye to it whatever. Maybe it suited them to let it continue or maybe it was due to inertia.

In their position the minute I'd have found out a discrepancy I would have covered the matter with him and got things back on track, not left it for years and then decided to throw the book at him.

I am not excusing his actions, I just find it incredible he is being potentially done for gross misconduct under the circumstances, and not given the support of management

People do all sorts of things to push the envelope, give them the message that it will not be tolerated and it gets sorted, they shape up or ship out. Leave it, take no action and let it perpetuate, and it gives the message it's a more fluid situation.

I am not convinced it is gross misconduct, and I wouldn't just sack them without a thorough investigation, and give him the chance to explain. I hope that's what they intend to do.

I don't think it's gross misconduct either. Misconduct, yes. Potentially serious enough for dismissal, yes.

But not without notice, and not without pay. That's what gross misconduct means. I think you can give him notice and pay him his notice. If he claims unfair dismissal, well then you have to establish it wasn't.

Sorry I forgot to say - you can dismiss after following due process - as others have said.