Is this Gross Misconduct?

[7917Kj]

was hoping someone could give some advice as I am worried sick.

Apologies in advance for the long post but want to give some context as he has had the month from hell.

My husband had been in a role for 8 months, passed his probation with flying colours and all was going well. In December a new director started who was to be his new manager. This man took an instant dislike to him, told he was rubbish at his job, didn’t know how to do anything, and just before Christmas after being there only a week pulled him into a meeting where he asked him to demonstrate tasks on a system he had never been trained on or needed to use, told him it wasn’t acceptable that he didn’t know how to use, said he didn’t care he hadn’t been trained it’s not an excuse and if he didn’t improve in all areas a formal process would begin. Having never had any negative feedback prior to this, in fact the opposite he was obviously confused as to how he was suddenly deemed unfit for the job this ruined Christmas as he spent the whole time job searching in fear of being left jobless.

This continued in the new year with several other incidents of being spoken to like rubbish, undermined, made to move out of his office (he was a manager) and into the open plan office etc

Last week week he raised a formal complaint stating he felt he was being targeted, the approach boardered on bullying, was happy to improve in any area the business felt was necessary but needed training on X,Y,Z. He was bought into a meeting with the directors manager who agreed with all the points made, agreed he had had no training, agreed this man’s management style wasn’t acceptable and said it would change and training booked in. He even went as far as to invite him to a company event for with the CEO this weekend. His manager changed his approach and started telling he was great for 3 days then on Friday he was fired with the reason being we don’t feel it’s working out. Turns out if you have worked less than 2 years you have no right to appeal or claim unfair dismissal. He has no disciplinary , no performance improvement plans nothing.

He was asked to clear his desk in the middle of the day in front of his team, understandably he was flustered and embarrassed. It has now transpired that during this desk clear he accidentally threw away the appraisal forms he had completed that day with his team in his haste to leave the building. They have asked for them and he has said he believes they are on his desk but if not the only other place could be the confidential waste bin. Can this be classed as gross negligence? It was a genuine mistake. Could they now not pay his notice?

Apologies for the long post, we are reliant on that money the job market is terrible atm and it will take him at least that long to get a new job

If he was already let go then gm would not be applicable. Silly of him not to ensure he left them in his desk though.

No, if he’s already been dismissed they can’t dismiss him again.
He can appeal the dismissal though, have they detailed the appeal process?
Also, even under 2 years service, if they have dismissed just after him raising a grievance for bullying/harassment then it could be unfair based on whistleblowing.

Have a look here
www.acas.org.uk/dismissals/unfair-dismissal

Thanks they have said hey sacked him for not performing even though this hasn’t been documented as it’s never been raised bar the one meeting before Christmas. In regards to the grievance raised they said it was dealt with and has nothing to do with why he has been fired. This man has also gone back on everything he said in the meeting saying he didn’t agree with him and he has training none of which they would be able to prove as training doesn’t even exist currently! Would this be classed as gross misconduct though in any event? It was an honest mistake he was all
over the place

I don’t think it would hold as gross misconduct no.
It wasn’t deliberate, there was no intent and also the mitigating circumstances are a shock dismissal with no warning.
I would advise your husband to appeal the dismissal and also contact ACAS.
Does he still have the grievance casefile/info in writing?

They would need to be able to demonstrate this was due to performance and not the grievance.
If there are recorded meetings of them addressing performance and supporting improvement, but this hasn’t worked, then they can dismiss on capability grounds. That doesn’t sound like the case though.

They've already dismissed him so can't dismiss him again. They have to pay notice and accrued statutory holiday pay unless they've been through a proper disciplinary process and dismissed for gross misconduct.

Likely they will try not to pay, but it's pretty easy to get non payment back unless they've got bust.

Contact ACAS most urgently!

He has the emails he sent but no replies from them as they didn’t respond in writing just took him into a meeting and agreed with him and that it would all change and they want to set him
up for success. This whole thing started on 21/12 he was then off for 10 days at Christmas and he’s been sacked on Thursday so a very quick
turnaround to suddenly decide someone can’t do the job when they were amazing before

Apparently they don’t need to demonstrate anything or even give a reason under 2 years?

He doesn’t want his job back he just wants his Jan pay and months notice, they seem to have found a load of loopholes to make this legal so there’s no point. I am just concerned they will really twist the knife now and make this a reason not to pay notice

@7917Kj It’s poor practice and leaving themselves open to a claim if they have followed no process.
Particularly in this case as it looks like it’s a reaction to a grievance.

It’s very poor practice I agree but they don’t seem fussed and apparently their external HR team are also fine with it as the grievance didn’t got to HR it was internal (which is the correct process) it didn’t need to go further so he thought as they agreed and it improved for 2
days!

If they refuse to pay notice he could claim wrongful dismissal… either way I would call ACAS and talk it through.

Thank you very much for your advice. I have been so surprised by this whole thing, nothing like this would ever happen where I work so I keep getting blindsided by the way they are behaving.

Does he definitely get 1 month notice? Is that contractual, as statutory is 1 week after 8 months?

They can let you go for any reason within 2 years really as you have no rights, as rubbish as that is unfortunately. But they do have to pay for hours worked (unless something agreed in contract re. deductions, for example things like uniform etc) and they have to pay notice, how much notice depends on if there is a contractual period or statutory.

Yes his notice is a month after probation and they confirmed this in his dismissal letter. This appraisal thing has come up the next day so hence being concerned they can backtrack if they decide it was deliberate (it really wasn’t) he was just mortified and wasn’t thinking

Contact ACAS on Monday, but don’t worry too much about anything else. Mainly he wants a copy of the reference that’ll be provided to future employers. ACAS can guide you on that. But largely companies will only confirm dates of employment and last position held.

Sadly, this happens far more often than people realise. The 2yrs thing is something the Gvmt are talking about changing. His best bet is to focus on applying for what’s next.

sorry. Only had time to read your replies OP..
But you said
"the appraisal forms he had completed that day with his team"
Presumably, they have copies of the blank appraisal forms.. and they have his team. If it was completed on his last day.. it can't have taken that long.

Could they really make a fuss about this, since it seems it might be relatively easy for whoever takes over to do it. The team already know what they said previously...

Yes it could be easily redone, as you have probably grasped by how they have operated in this situation process isn’t really their thing the appraisal forms were very basic and its
more a tick box exercise for when they are audited not because they value feedback or to aid progression etc. He hadn’t has his appraisal
which was strange as they clearly had so much to say?!

I am just fearful they will use this as an excuse to not pay, it’s the only negative thing they have to say as nothing else has happened.

I think they are annoyed he dared to question with HR the decision to fire him days after a grievance was raised (a grievence that HR hadn’t been made aware of).

If he's passed his probation, then it doesn't matter how long he's been there, he is able to claim for unfair dismissal.

Please also call this helpline ad this in unfair dismissal. Tell your husband to start making a full statement off all events, dates and times of everything he remembers as I reckon you have a good claim here http://bpp-pro-bono.developmentzone.co/blog/projects/employment-law-telephone-advice-line-eltal/

Also he should just say he left them at the office. If thry are not there someone must havr moved them. I can't see how they can prove otherwise. If they don't pay him money owed he should claim. Please contact acas, also find a union, you can sign up to unions that represent any jobs wlthat dont have official unions, google for one. they will give you representatives to accompany in meetings

Not true unless he can claim he has a protected characteristic and it was discriminatory.

?

This isn't true.