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

Moving a bit of paper is not gross misconduct. Didn't he do it on the computer and file them anyway?

He just says "I left them on the premises". End of story.

Agree with @Crazybaby123. He definitely left them on his desk. What his manager has chosen to do with them is not his concern as he is no longer employed by them.

He’s responded to say that’s the only thing he can think of if they are not in his desk. They have cameras EVERYWHERE -yes lovely place to work, so they could just check them if they wish. He acquiesced it possible this has happened as he wasn’t really concentrating on anything other than getting out of there as quickly as possible limiting what was an embarrassing situation that they decided to play out in front of the whole office. Others that have been let go have had it done at the end of the working day…

No they are just paper forms he was due to scan them on that afternoon however obviously wasn’t given the opportunity.

He may have left the appraisals on his desk and someone has moved them.

He may have but as I said if they wanted to they could check to see if anyone had been near his desk after he left

Would the manager have deliberately moved them/shredded them?
I can’t see that your husband could be proved grossly negligent or have behaved in gross misconduct.
I would definitely contact ACAS

if he has binned them then they would be able to prove he has with the cameras, as I said he has voluntarily told them it’s a possibility so they don’t need to prove anything, the point is if it has been done, it’s not been done with any bad intent it was done accidentally and that can’t be proved either way I guess

You're weirdly focusing on these appraisal papers, I think - unless I am missing something? Why would they care what he had done with them? As others have said, call ACAS first thing on Monday. Good luck!

Because they have asked for them post dismissal and when he has responded said it’s disappointing and will cause significant inconvenience to both the business and his team. I am only focusing on it as it’s the only thing they could possibly use to have reason not to pay him his notice but that would only be for gross misconduct which I am hoping it can’t be classed as as it was a simple mistake hasn’t cost the company money etc

I see - you don't need to worry about that, not least because they should have kept their own copy - if they tried it they would be laughed out of the Employment Tribunal. My worry would be whether he needs those appraisal papers to support a future claim.

it wasn’t his appraisal he has never had one, these were appraisals he had carried out that day with his team which were due be uploaded to the system that afternoon. He has no use for them and they contained no information of any real relevance to anyone like I said they were very basic tick box appraisals that took circa 10 minutes to complete per team member. That being said he understands why it’s annoying and would never have intentionally threw them away, aside from anything else he wouldn’t want to waste his teams time having to sit through them again, who he got on very well with and had a great relationship.

it’s disappointing and will cause significant inconvenience to both the business and his team

They’re taking the absolute piss. He’s dismissed, he doesn’t need to respond further. What a cheek, as if being fired isn’t a significant inconvenience to both your DP and his family. Fml, this place sounds horrendous.

I know mental isn’t it?!

Tell him to stop engaging with them. He doesn't need to be in contact with them at all.

Agree with all the posters saying contact ACAS/a union..
They are taking the piss, trying to make this document seem of vital importance.
It was left in the building. It's easy to replicate with his team.

Ghastly as this whole dismissal sounds, it may be that in a few weeks he will feel that he's well out of it. His manager was a workplace bully, I bet the whole "missing" document complaint was the only justification he could find. I doubt he's told the truth about anything. Working long term with a toxic person like that can really erode your health and self confidence. So in the long term, this may all be for the best. Work just shouldn't be like that. Try not to worry until you've spoken to your union. If you have legal assistance on house insurance, they will have a help line and will usually answer questions, even if it turns out they cannot help you for free. its usually covers unfair dismissal situations. Other posters are right, do a clear simple timeline for the contacts. Search out any previous good appraisals from the company and even previous companies.

Sounds like the new manager has someone they want in that role and it’s not personal. It shouldn’t be allowed but it is.

If the company haven’t threatened to withhold notice pay then I wouldn’t worry. If they have, then ACAS may advise. Don’t engage anymore and focus on the next move, and a less toxic environment.

Yes, he’s come from another company in the same industry and had mentioned several times that he has people ready to move into vacant roles. I assume by making his life impossible for the last month he was hoping he would quit and when he hasn’t has done this instead. This man said to him last week “you are liked and it’s not liked” i.e by him and that as a manager he should be hated and feared not be approachable and friendly.

He knows he is best off out of it, just upset that his termination letter states complete untruths which if he was in a position where he had any rights to contest he would win as he can prove he has zero training, there’s been no mention of bad performance intact quite the opposite and he has asked in writing for training and support and the emails were no responded to.

What you’re describing here OP doesn’t absolve them of paying notice.

Playing devils advocate, they actually wouldn’t have to pay his notice if he had actually committed gross misconduct (ie a fundamental breach of contract). That’s true even after a termination notice has already been issued, as the law allows an employer to take matters into account that they discover post termination. When it comes to wrongful dismissal claims (a claim related to notice) rather than unfair dismissal, the employer has to show in fact that a fundamental breach of contract occurred. If it did, they are no longer bound by the notice requirement (or PILON). It’s not enough for them to just believe that it did - it has to have actually happened.

But anyway - even if he had left the appraisal form on the desk, or put it in the bin, that isn’t likely to be enough to withhold notice and he can bring a claim for wrongful dismissal if they don’t pay it.

No he can't
Those changes have been proposed but they have not been implemented yet I don't think

These papers don't matter.
He has been sacked and is entitled to his notice pay as per his contract.
Is the concern that they will try and claim gross misconduct to get out of paying his notice?

Yes that’s my concern that they will
now use this as a reason to say this was gross misconduct and not pay his months notice.

It would be quite a stretch to say that if he has accidentally put these documents in the confidential waste bin whilst clearing his desk that this is gross misconduct but nothing would surprise me at the moment and we are going to struggle if he doesn’t receive that money.

He can’t claim for unfair dismissal under 2 years. However, depending on the specific circumstances, he may be able to make an argument for victimisation (2 years service not required). Definitely talk to ACAS tomorrow. Best of luck.

Is he working his notice or being paid in lieu? It sounds like the latter if he was clearing his desk. In which case, they haven't got time to do an investigation and hold a hearing before pay day. So, if the withheld his notice pay he would have a claim for wrongful dismissal (different to unfair dismissal and doesn't need two years service)

And no, he wouldn't have a claim for victimisation. In employment law terms that has a specific meaning and this isn't it.

He needs to put his energy into his future now, move on and find a new job.