DH has disciplinary hearing - please help me

[magpumpkin]

My DH has been really stupid, he is a sales rep and has a company mobile phone. He was in normal month sales meeting last week and was asked to stay behind. He was then told by his MD that he was under performing on his work and totally bollacked about his misuse of company phone ie sending over 100 text messages in the month of sept during working hours. He held his hand up to this stating his mate was in marriage trouble and was shoulder to cry on and it would not happen again.
Today he had a quick meeting with his boss (which my DH asked for) taking with him ammunition to prove that he was not the worst rep and that there was another rep below him not performing. His boss told him that hte underperformance was not the real problem but the misuse of the phone. Was told that a letter would be coming out detailing all this. When he gets home tongiht he tells me that 5 mins beforehand a phone call comes in from his boss to say that he hsa a disciplinary hearing next friday. Is it likely he can be dismissed for this offence , he has not been pulled up on it beforehand and he has heard that they have brought in another rep already to cover his area. Do you think if he is sacked that it could be construde as constructive dismissal? I am so mad at him, that he could jepodise our family unit like this all for a fucking friendship...

If they decide it constitutes gross misconduct then they can just fire him. Depends on mobile phone policy they have in place, if it expressly forbids private use in working hours then they have a case. Bringing in someone to cover before hearing is dodgy. ACAS site quite good for legal stuff on this.

Sorry its horrid, friend went through similar recently.

Has he been employed for over a year? If he has he has greater protection from dismissal and dismissing him for this offence could be unfair dismissal.
What was agreed about the mobile phone, is their a policy? Do others use the company mobile for personal use? Can he offer to pay for the personal use of the phone?

Have you a copy of the policy on using mobile phones ?

I would think that treating this as gross misconduct and dismissing without warnings would be seen as too harsh a penalty by a tribunal - unless it is specifically cited as grounds for summary dismissal in the company's disciplinary code. Even then, I think it would be difficult to justify such a harsh penalty. I would think a first written warning and being required to reimburse the cost of the texts would be the most that could be justified.

MrsDenning, if he has been employed for less than a year he has NO protection from unfair dismissal, he would only have protection against breach of contract. So an employee with less than a year's service can be sacked for any reason and, as long as the company pays them their contracted notice etc they have NO comeback.

I would be very surprised if this led to dismissal but I think would warrant a warning. Depends on their phone policy. He needs to be prepared to really justify his case but if it looks like a verbal or first written warning, I'd suggest he takes it. If they dismiss then (a) get some proper legal advice pronto and (b) appeal about dismissal. What others have said, if he's been there more than a year then he has protection against unfair dismissal.

read the letter they send carefully. Have they suspended him? It doesn't sound like it. If not, then I'd GUESS (stress GUESS) that they are looking at warning but they'd be bold to do more unless he has a history of misusing phone.

Good luck.

Thanks for your messages. His company handbook state:- "Personal matters should not be conducted during office hours, however the company recognise that occasional personal telephone calls may be necessary but these should be restricted to the minimum. - If you have been provided a mobile phone this is to be used for business call only, if the phone is used for private calls then the company require you to reimburse the cost of these calls".
My DH offered to pay for these calls in the original meeting to be told "it's not about the money". He does not have a previuos record for misuse - only for the months of Sept & Oct when his mate was in trouble.He has been with the company 2 years at the end of Nov. I believe they brouhgt in this new guy to replace one of the original team and they are trying make a case against my husband so they can get rid of one of them.
I am so worried. Sacking means no mortgage insurance, no benefits and no reference worth the letter it's written on.

I think his company are trying it on. As they have clearly taken on someone to do his job before any disciplinary action has taken place your DH would have a very strong case for unfair dismissal if they do take it that far.

Apart from anything else, unless the company handbook states clearly that what he has done is a special case that constitutes gross misconduct warranting summary dismissal then the most he should get is a written warning. Also, as there is not a blanket ban on using the phone for personal stuff just a requirement to reimburse then your DH has a strong case to say he has not actually contravened the rules as he has offered to reimburse.

Your DH should go into this disciplinary hearing with a very robust statement stating that he believes that he has abided by the rules and that he is aware that the company has already got a replacement for him before the hearing has even taken place, showing that they do not intend to give him a fair hearing. He should state that he is aware of his rights re unfair dismissal and is prepared to go to a tribunal if necessary. It might also be a good idea to indicate that he might agree to leave if they offer him a good compromise agreement which includes compensation for loss of earnings to allow him to find a new job (about 6 months salary would be fair) plus an agreed form of reference that they must provide to anyone requesting a reference for him in the future. This is a legal document which they must adhere to or he can sue them. It is usual for the employer to pay the employees legal costs for getting advice on this agreement and having it drawn up.

Hope they see sense and it deos not go this far but the fact that they have got someone else in does sound ominous and your DH should not be afraid of insisting on being treated fairly.

I think Yorkshire Rose is right and a compromise agreement is the way to go. Dh's mate and dh have both had one of these put in place in their working careers and it is a very good way to extricate yourself from a situation without being financially knackered by unfair treatment. If they want rid of him - and it sounds like they do then you just need to ensure your finances have some breathing space and his reference is protected and move on.

My DH found out this new guy had been taken on from this guys old company (its a very close industry). When my DH asked his boss about him he was told he was brought in to enhance the sales force. The team have been under redundacy pressure since March of this year, when they all received letters stating this. So he could not prove either way - it's just very convenient that the company kept it quite until DH brought it out into the open, then they told the rest of the sales force.When my DH had the quick meeting with his boss on Friday after the MD meeting his boss said he was disgusted (he said this )that my DH had done a spreadsheet proving that he was not the worst perfomer of the year. He said "it;s not about the underperforming but that the trust they had in him had gone out of the window.

Also who can my Dh take into this meeting with him? I know he can take a collegue but no collegue would want to go up against the MD. (I know they only introduce my DH but still)The company does not have a union rep.

I think your husband needs to forget about proving that he is not the worst performer - in fact, if I was his line manager I would be very unimpressed to think that someone who was not meeting his sales targets was spending his time compiling spreadsheets to prove that someone was worse than him. How does your husband know that the manager is not also taking action against the other sales guy? Or if not, that there is not a good reason for this?

The issue of the other guy apparently being brought in to cover your husband's area is also a red herring - it is gossip and hearsay. It doesn't matter if they brought in 6 new sales guys, they can still take disciplinary action against your husband for the misuse of the company phone. I agree that it would appear to be extremely harsh to dismiss him for this offence and it would be more likely that he would be issued with a warning. I say that assuming that once the issue of the phone usage was drawn to your husband's attention he did not continue to use if for personal purposes?

Mag - the most useful purpose of the companion is to witness the meeting imo. He is entitled to take in a colleague, but he can also request someone else especially if he cannot find a colleague prepared to accompany him - eg a friend. Would almost definitely not be allowed a solicitor or a family member. The company can turn his request down but they would have to justify this decision to a tribunal, especially if he cannot find a colleague willing to do it.

I would say that the most harsh action the company could justify would be a warning - then your DH needs to learn from this and not use the phone for personal matters EVER again. Any decision to dismiss for this without prior warnings would almost certainly be held to ne unfair.

Though it seems to me that the boss is actually trying to bring in his protege from his old comapny, so perhaps a frank off the record chat about making him a reasonable offer to leave might be the best way forward.

Thanks to you all for the advice. We just have to wait for the letter now detailing the reasons or the discipline meeting. Can I come back to you all wise MN to ask for your advise when this comes? thanks again with everything crossed.

Will be looking out for you mag. Hope it all works out.

Well my DH has received a letter this morning stating a ' Formal Disciplinary hearing' is to take place, to discuss reason for over 300 texts messages being sent out over a 2 week period (named dates)& over 346 calls outside normal business hours over 1 month (names dates). He has not been given this phone bill - is he entitled to it? As they have named the dates what happens when the compnay receive the October bill (coz I reckon that could be bad also)If he gets a written warning (hopefully) for this Sept one can they issue another one when the Oct bills comes in? They say nothing about previous month useage. My DH is trying to get an appointment with an employment solicitor before Friday.

I feel sick to my stomach - I am so mad at him it is unbelievable. I don't blame the company - that is totally OTT, but can they really sack him? official final warning letter he will take. Hopefully the solicitor will look at his compnay handover/contract etc and give his view.

He is entitled to have copies of any documents the employer intends to use as evidence before the hearing so, yes, he should be given a copy of the phone bill. As the October phone calls have already been made it would seem to be unfair to issue another warning for these - the improvement in conduct required would surely have to be from the date of the disciplinary hearing.

that is alot of calls/texts. doesnt he have his own mobile?????

Yes it is alot of calls/messages. thats another story - one of which we are dealing with privatley. We went out at the weekend to get a personal phone (perhaps not agreat idea gievn what I found out today - bet hey ho one problem at a time). The solicitor called him today and suggested that the company would likely issue a written warning, but that is not a guarantee is it. My big worry was that they use Oct bill as as seperate issue, but as YorkshireRose so helpfully suggest -they should really call it from the warning date. My H will ask for copy of the bill tomorrow and we will go through it together. The texts are a given but the phone calls I don't think that we/him made over 13 calls a night outside of working hours even at the weekends.He needs to write his statement when he gets this info.
Thnakyou to all of you lovely MN ladies. I knew you would try to help me sort this stupid mess out in my head. I will report back to you when I have more news. Thankyou again.

Goodness me. Sorry was just a bit shocked at the number of calls and texts. That really is alot.
Hope his meeting goes o.k. I do think this constitutes gross misconduct, not just a little misconduct - mind you that is just my personal view with no legal background or knowledge.
Let us know what happens.

Hope it gets sorted and he keeps his job. if you dont think all those calls were made, def look at the bill. could be combined and the a/c ppl havent noticed? good luck.

H rang the solicitor again this morning to ascertain what the company could do when the Oct bill comes in - the solicitor said they could use it again for another warning? Surely if the calls have already been made and he has not used the phone for personel calls since the original allegation it would seem grossly unfair to issue another warning letter. I just wish this whole thing would be over NOW. What do you wise MN think please?

I think he should bring up the oct bill with his boss - so at least he has made him aware - then it is up to them what action they take. xx

I would agree with SoWhat, I think that there is a real chance that the company will use the next bill for another disciplinary if they don't know about a second batch of calls. I think that there is an issue about whether it would be fair to dismiss based on something that had already happened when the first disciplinary took place and was essentially the same offence, but if they went with a first warning this time, it could easily lead to a final warning.

I also think that there is a risk it comes across as dishonest. Think how the employer would see it. They have run a disicplinary about inappropriate phone use. Say they give a warning, they then find that there's a whole extra batch of calls from the next month that they didn't know about and that your DH didn't mention. They're going to feel that he deliberately didn't mention it since it's so obviously relevant. I would 'fess up now and get it all dealt with together. I think your DH should discuss this carefully with his lawyer.

My first instinct on your post was to say that it was a warning issue, but if that number of calls is really correct, then I think over 500 instances of using the phone for non work in a month does possibly tip you into a fair dismissal. It would be touch and go and I think a wise company would warn, but if they are keen to get rid of him, my honest view is that there's a risk. Sorry.

In terms of right to be accompanied, it doesn't need to be a union rep for the company. You don't happen to know anyone who is a union rep do you? I advise companies to take a hard line on allowing outsiders (i.e. those other than colleagues and union reps) into the meeting, partly because of confidentiality and partly because the only reason that this right applies is because of a specific piece of statute. Unless going further is necessary to make the process fair (e.g. if the employe has a disability), I don't see that it's necessary to give the right to be accompanied by anyone else. Again, sorry. I don't mean to be blunt, but sometimes it's good to hear from someone who's normally on the other side?