Tribunal help - unique dismissal event?

[EnvyDeano]

Hey!

So a few months ago I was dismissed for gross misconduct, following months of bullying by the HR manager and business director.

After trying to raise a grievance about the bullying I was told that the 2 people that I am complaining about are the only people in the business that can hear/ judge my complaint and it would make things worse. I was told the only option I had was to resign... so I did.

While working my 3 month notice the bullying got worse and I was signed off.
As a side business (Ltd company) I provided the company with their website (both design and hosting), while I was off sick the Director emailed my business saying that I had acted fraudulently and that he wanted all services to be cancelled with immediate affect.

I went in and spoke with him about this and wared what the consequences of cancellation were (i.e. immediate loss of the site and email etc). With in 30 mins of this meeting HR emailed me to say I had been fired with immediate affect for gross miss conduct due to threatening behaviour. This 'threatening behaviour' was apparently me warning what will happen if I cancel the hosting etc and was worded on the dismissal letter as ' threats to destroy the company website'.
I was also not given the right to appeal.

The company though that I had been there less than 2 years, and didn't follow any procedure. Whihc is generally how they treat all past staff - they like to make sure you are out before you have 2 years of service and would make stuff up. I was luck as I have just made it by 1 week

Now my question is - does anyone know of any case law that would fit the event?

I was dismissed for a conversation that took place where I was not an employee of the company the fired me - I was there as a contractor/ representative of my own business to discuss the company website.

As I was signed off it was clear I was not there as one of their employees.
I am now going to tribunal and have mountains of messages to support bullying claims etc but cant seem to find anything about taking part in the conversation as a contractor rather than an employee etc.

Any thoughts?

Many thanks in advance.

D.

I may be wrong but from what I can see, as a contractor you can't claim unfair dismissal or use a tribunal.

From my own experience (as an employee) you need to make sure you've gone through every complaint stage. But that's as an employee.

You don’t have two years’ service so you cannot bring a claim for unfair dismissal. It’s as simple as that since your situation doesn’t fit any of the exceptions.

You would only be able to bring a claim without a service requirement eg discrimination or whistleblowing but your situation doesn’t seem to fit these either.

bullying as a stand alone thing not a complaint you can bring in the employment tribunal (unless it’s discriminatory or linked to whistleblowing etc.)

ACAS can advise on employment law issues so I'd suggest calling them?

Ignore my post. Sorry I missed the bit where you said you were over the two years by one week.

If you're going to tribunal, are you doing so after consultation/with support from ACAS or an employment lawyer?

Did your ltd company have proper agreements in place, in writing, about the services you supplied? Have you followed proper processes wrt your customer cancelling their services?

What 'evidence' of their cancellation/you acting within your terms and conditions and according to [contract] law do you have?

I don't think you can claim unfair dismissal as a contractor either, OP. Why did you go in if you were signed off sick? I don't think you can use that as proof you were attending but not as an employee.

Did you give them any info or offer to pass the hosting details over to them or just issue a 'warning'?

I don't see how you can use any part of your employment as a contractor in your tribunal bundle tbh. Have you taken advice before thinking about a tribunal?

To be honest, this is very messy and you will need to get some specialist advice

Are you saying that you simultaneously worked for this company and for your LTD company? I assume this company agreed to you having a second job (or at least didn’t prohibit it in your contract)?

then, while signed off sick you continued to work for the LTD company (as well as getting sick pay). I think you’re on very dodgy ground here, especially if you worked in the LTD company during hours you would have been working at the other company if not signed off sick.

What is it you want to get out of the tribunal? I think you need to be clear about what your goal is before you go any further. I am not clear considering you had already resigned and were also on sick leave (which may mean you were in receipt of reduced pay anyway)?

I understand the dynamics of your engagements and I know you are not thinking of unfair dismissal as a contractor, but as an employee. However if one of my employees came into the office, wearing a different hat (e.g. as a rep of their Ltd company) and threatened to take down the company website, well I am afraid I would not tolerate them as an employee either, no matter what hat they say they are wearing at the time of the threat. And it does sound like this is what you threatened with your “warning”.

Added to that you were on sick leave from this job but able to work on your own business and come into your own office, well it doesn’t help.

I honestly think you should drop it and move on because I cannot see a realistic objective.

However if one of my employees came into the office, wearing a different hat (e.g. as a rep of their Ltd company) and threatened to take down the company website, well I am afraid I would not tolerate them as an employee either, no matter what hat they say they are wearing at the time of the threat. And it does sound like this is what you threatened with your “warning”.

Then you would be as bad as OPs boss. You can't sack someone for telling you something you don't like. If OP had ceased providing the website hosting as instructed then their website would have gone down. It's not unreasonable to point that out.

Generally companies fall down on procedure rather than the reasons they dismiss people so id focus on that. Read up on what steps they should have followed and see if they followed them. One case someone was fired with immediate effect for hitting another member of staff. They should have suspended and investigated then fired so paid out to avoid tribunal. It's not that you have to keep someone on but you have to follow proper procedure. ACAS can advise

If I have read this correctly, you built the company website before you went off sick, you didn’t work on the company website whilst off sick but the company called you in for a meeting and asked to end the contract. A hosting contract ends when the money stops so you couldn’t do anything else.

It would be considered quite reasonable to fire somebody for making threats against the company. Truly, I don’t think any tribunal in the country is going to say it is ok to make threats like that, they are not looking to knee cap businesses. And it sounds like the OP did threaten, because there is no need to bring the website and email down, it can be handed over in a controlled fashion. Do you think nobody ever changes service providers in an orderly manner!

If OP had come in and punched somebody, but whilst on Ltd company business do you think that would be ok? That they could just change hats back to employee and carry on as normal. I don’t think so. I expect you would argue that what somebody does in their own time should not reflect on employment either, well it can.

@Aprilx tribunals can and do find against companies who haven't followed the correct process for firing staff even for quite abhorrent behaviour. It's always worth a check with a decent hr person/lawyer. Most only check once the compensation claim hits the desk and then it's too late

"while I was off sick the Director emailed my business saying that I had acted fraudulently and that he wanted all services to be cancelled with immediate affect.

I went in and spoke with him about this and wared what the consequences of cancellation were (i.e. immediate loss of the site and email etc)."

Why did you go in rather than email? Why didn't you ask if he needed to migrate the service somewhere? It sounds like you acted out of emotion rather than professionally.

I don't know what a tribunal might say, tbh. Even if they did say you were technically dismissed wrongly, they may find that you would have been dismissed correctly anyway, which would reduce your claim. Is it worth the stress?

If you were there a week over two years dismissal is unfair. If you were there a week under you could have a case, as there is a special dispensation to prevent exactly this kind of thing.

The bit about accusing you of threatening behaviour is very likely unfair dismissal in light of previous conduct/vexatious complaint on lack of grounds.

Call Acas and file because it can be confusing but the tribunal system is set up to protect the 'litigant in person'. Worst case, you'll be suddenly a very expensive mistake, and that leads to a conversation.

I have no idea how the 'employee' situation will pan out.

However, if I have read this correctly, if the OP has provided Website formation and hosting services etc through an entirely separate limited company entity then those contract clauses should apply.

These seem to be two separate issues for you to sort out?

Again, I'm not legal, but a limited company is a separate autonomous entity from 'OP as a person'. A Ltd company can enter in to legal agreements in its own right - which is the point of 'limited liability' company.

Or, is OP a contractor using a personal service company to provide services to their former employer - in which case they wouldn't be an 'employee' at all? But Ltd company services provided may be the property of the 'former employer' - depends on contract.

If OP's Ltd company contract with their former 'employer' states something along the lines of 'website remains property of Ltd company, if services are terminated then Ltd company will withdraw right of access to website blah blah blah...'. Then OP, as an officer of Ltd company, must surely be correct to point out such clauses.
Is there not some sort of handover clause for 'normal transfer' when former employer wishes to change website provider that is not so draconian?

Think you need specific legal advice on both issues here.

It’s complex but the “contractor” issue is unlikely to be relevant as you had already resigned (and are presumably claiming you were constructively dismissed unfairly). I hope you do have proof that they would sack you if you didn’t resign as constructive dismissal is difficult to prove.

In any event, you were still an employee regardless of what “hat” you had on so your conduct can be taken into account.

Gross misconduct does not have to be during working time.