Can I get fired for this?

[canigetfiredforthis]

Please be kind I'm extremely stressed right now.

I started a job in relatively senior position to be told 5 weeks later I was at risk of redundancy (no fault of my own). I've been extremely stressed due to this as I was at the last place for a very long time.

Anyway I stupidly sent an email to my boss late one night (drinks had been consumed) basically saying there are loads of issues and you've messed me about massively basically. No swearing and not abusive in any way.

I recalled the message soon after I'd sent it but obviously unsuccessfully.

Anyway now they are saying they are going to fire me for gross misconduct! Can they do this?

If it helps at all, I worked with a guy who told our boss to "stick that rubbish where the sun doesn't shine", in response to being asked to do something the disagreed with. So he was fired for gross misconduct, and successfully extracted 18k for wrongful dismissal, because HR wrote "serious misconduct" in the report...

I'm a bit confused but the completely different advice I'm getting here. I don't understand what the point of contracts etc. is if they can basically just do what they like if it's in the first 2 years?

I am definitely (was) entitled to 3 months as I'd had my consultation call beforehand. Basically in the last few days / weeks before being let go. So I think the motivation is pretty clear.

I'm not sure if I have the strength to fight them but my husband is adamant. Not his career though is it!

Honestly OP, ignore your husband. Phone ACAS with all the details you understandably don’t want to give here, and see what they advise.

Although if I were you as wrong as it is I would question if I really wanted to stay for 3 months. If ACAS confirm you are correct and you are owed 3 months notice, it may be worth trying to negotiate a shorter notice period E.g one month PILON or gardening leave. That way you’re not stuck there for 3 months and they can save a bit.

What is a “consultation call”?

I am surprised that you are on three months notice after five weeks, are you sure there isn’t a shorter notice period at the moment?

I could quite easily see that a drunken email to your boss sent at night would be grounds for immediate dismissal, but I would have to see it really and it sounds worse in your first post than it does in your subsequent posts.

Yes there should nevertheless less be an investigation, but this really wouldn’t need to be a very long investigation would it? It is not like it was an allegation that needed to be verified, it is there in black and white.

As I say, I would really have to know what you wrote to give a better opinion, but on the basis of your first post, I would be inclined to accept the offer of resigning with immediate effect and keeping the gross misconduct off your record. Yes it is easy for others to say fight it.

I would stay and insist on the money and just not put the job on my CV, it’s such a short time just say you were on a career break, travelling etc. I don’t see why a late at night email is gross misconduct, they don’t know you were drinking? You could have just been hard at work! Just really emphasise your mental health and how stressed you are and apologise for the lapse in complete professionally but you again are very very very stressed and mental health is suffering from this swift redundancy procedure.

They won’t make you work the notice (they won’t want you there) - they just don’t want to pay you. Your notice stands (even when getting rid) 3 months notice protects you in cases just like this.

You can't bring a claim for unfair dismissalif you have less than 2 years' service. You can bring a claim for wrongful dismissal* *ifyou have less than 2 years' service.

I don’t see why a late night email is gross misconduct

Well surely it would depend on what it says!

Definitely don't just resign. I'm glad you're speaking to ACAS today.

As you have under two years' service you do not qualify for ordinary unfair dismissal rights. This means you aren't entitled to a redundancy consultation (process) or to a statutory redundancy payment.

However your contractual notice is a different matter. Unless you have committed gross misconduct they cannot withhold that from you. If they do then you have a wrongful dismissal claim. You are entitled to bring a wrongful dismissal claim regardless of your short service.

If you have committed gross misconduct then they can summarily dismiss you (no notice). However they would need to show that you have indeed committed gross misconduct and this in itself would take time - investigation etc.

The risk if you proceed in this way is that they are desperate to save £ on your notice pay so they will dismiss you for gross misconduct regardless of the seriousness of the email you sent. You would need to consider your response to this - ACAS early conciliation can work a treat to show you are serious about pursuing your rights.

In respect of your notice, you say it is 3 months. The only thing I would check is whether there is a contractual probationary period providing for shorter notice as 3 months is quite long notice after only 5 weeks there.

Good luck with it all.

What did you say OP? It really matters. Can you try and tell us without being too outing?

Hang tight and get advice.

Don't tell us the content but do you actually stand by what was said? I believe you when you say it wasn't abusive. Do they know you had had a drink?

Some people on here jump on in a very fatalistic manner. I'm not claiming to be a HR expert as I say but i was a senior manager and dealt with a lot of recruitment and some letting people go and would say that no, it isn't a done deal that an out of hours, drunk email should be automatic GM. It would very much depend what it said.

I'm confident that it isn't GM to raise issues with the company to your manager and express disappointment that you have started a new job only to make be told it's at risk. It would depend how all of this was said.

This isn't correct.

Notice period applicable to the OP is:

The statutory redundancy notice periods are:

• at least one week’s notice if employed between one month and 2 years

Source: gov.uk website

100% have 3 months notice. The consultation was regarding my redundancy and they said I would get 3 months notice which I may or may not need to work.

The email questioned the experience of the boss and my predecessor and stated that there were issues. (Which is true!). It also said that they had treated me badly. It was a bit blunt / sarcastic in tone, I think they are going to say that the tone of the email was not professional.

Given the brevity of your employment, they would likely take the expedient view of paying you the 1 week statutory and not get into the vagaries of gross misconduct when they don't need to and may not have full justification.

They're probably 'putting it out' there to ensure your case is weakened and it enables them to take the economic route as line of least resistance that you'd be unlikely to argue against.

Given you haven't disclosed the full narrative in your email, best to talk through with ACAS.

And don't logon to your work commuter when you've had any alcohol is probably the best advice!

Difficult. Risk of redundancy is not redundancy. You may have been retained or put in another position.

you won’t say what’s in the email other than they have issues and messed you around. You think it’s not bad, they do.it’s hard to say who is right without reading it. In such a short tenure they can just get rid.

a friend of mine had a similar situation . She was employed by a company in financial trouble, in a much more senior role than she’d ever done before or was qualified for.

the bank/lenders had insisted they put someone in, to do a certain role or they were calling in their loan. It wasn’t a case of the company wanted her, and she was pretty much the only person who applied and didn’t have the skill set to understand a company’s financials and grasp why no one else wanted it.

When she told me I looked for her and told her they were going under and in real trouble. But she was so delighted to get a senior role. It was awful for her.

they got rid within two months, ignored her for the short time she was there, she tried so hard.

it isn't a done deal that an out of hours, drunk email should be automatic GM

In this context, it depends what the employee handbook states about misuse of work computer equipment. They'd need to reference the clause that deals with that scenario.

Ah ok cross posted, so a bit worse then Initially indicated

Resign. It’ll look better for you with next employer

Not if it has been read

I have spoken to ACAS. They said I could have grounds for 'wrongful dismissal'. They said that they will be able to fire me but then I can take it to a court if I feel that I have been given gross misconduct where is shouldn't have been gross misconduct.

I need to assess the handbook to see what it says I think and take it from there.

Thanks everyone for all the advise! Quite mixed but I guess that just indicates that it's not clear cut.. depending on how you look at it.

Glad you've spoken to ACAS.

If your employer fires you for gross misconduct and their disciplinary procedure has an appeal process, be sure to follow it. Also let your employer know during any disciplinary hearing that if you're fired for gross misconduct you will bring an employment tribunal claim for wrongful dismissal. Ideally, you want them to pay your notice without having to bring an employment tribunal claim to get your notice pay, so be very clear you've spoken to ACAS and you'll bring a claim unless they pay your notice period.

The key words here are “could have” and “feel”. It’s basically non comittal

It always amazes me the number of 'senior' people that post on here who have zero knowledge of the most basic of employment law / any understanding of how employment situations seem to work!

No one will be able to tell you whether it's gross misconduct or not, it'll depend on the exact content of the email. Also in my experience ACAS advice is rubbish, it's all 'potentially''could' 'may' you need to speak to an actual employer lawyer and for them to see the full details of what you've said, not just one-sided snippets.

It always amazes me that people can be so mean when folks are quite obviously feeling pretty shit already!

ACAS are notoriously wishy washy but this definitely sounds like your new firm are trying to wriggle out of paying you any notice/redundancy. Get yourself and employment lawyer instructed. It'll be worth it.