Offered Gross Misconduct Charges or for me to resign - I resigned

[keentomoveon]

Hi everyone

 

I made a mistake on a design job a few weeks back, I didnt do some amends or rather I didnt do all the amends I should have. The account manager didnt do their job, the client signed the job off as okay, it went to print. The printer messed up and it all went horribly wrong.

 

I panicked and messed up the job, I admitted that and I admitted my role in the job but didnt accept all of it.

 

They gave me a hard time and after already being overworked and underappreicated I began to not care and look for other work.

 

Little did I know that since that day they have been recording all my time on computer and therefore all my personal email and internet usage.

 

I did use the internet when I shouldn't have and I accept the blame for that. They saw that I had an interview and also a possible offer of a job.

 

I was basically hauled in on Friday and eventually told what they had been doing and showed me evidence of this (which I knew of) and basically offered 2 choices, that they would file gross misconduct charges which would stay on my record or for me to resign - so I obviously resigned. Left my card and key and walked away.

 

Was any of the way they went about this unfair?

 

I fully take responsibility for the internet abuse (I looked at personal email, jobs, film and motorsport sites) I understand why I had to go in their eyes. Im not chasing compensation etc etc

 

What I am worried is what effect it has on my future job / potential job offer. They won't want to give me a good reference, but are they allowed to give me a bad one? Where do I go from here? They say that my internet use affected my job and ability to do it properly, that my productivity was down and that I wasn't doing my job properly. I know my productivity wasnt down and I know that it wasnt affecting my job, what was affecting it if anything, was their conduct and general affect on morale.

 

It not excuses or reasons - im just stating. I know I did wrong, I was disillusioned and was trying to rectify that by getting another job.

 

Obviously im just concerned that this is the end and there is going to be no other suprises or they arent going to take more action against me, I dont know if anyone can help answer that for me or at least give me a guide.

 

I need to learn from my mistakes and reflect on what happened and make sure that never happens again and im taking steps to make sure that it doesnt.

 

Any advice or help would be most appreciated.

 

Thanks

Edited September 20, 2008 by keentomoveon
Spelling...how ironic

[Rooster-UK]

A reference MUST be truthfull.

If the information in a reference is wrong, then they leave themselves open to libel charges.

[keentomoveon]

So they could still basically say that I made a mistake and that I resigned due to internet abuse.

 

So either way im not going to get a good reference...

 

It my own fault, just a shame that the 1yr 6months that I did well and everything they wanted has been ruined by me being stupid.

 

Just frustrated..........

[gemspan]

did they have an internet usage policy? If so, what did it say? Were you advised that they were going to be monitoring your behaviour following the mistakes you made? Did you get a verbal warning at that time?

 

What does your contract of employment say relating to disciplinery etc.,? It may be that they have acted out of turn. If so, you may have grounds for constructive dismissal. In what way did they say that your internet usage was affecting your productivity? Do other members of staff use the internet the same amount of time as you did?

 

All of these things are relevant. Internet usage, in my opinion, would not be cause for gross misconduct as long as you were not entering porn sites or the like.

 

Everybody makes mistakes at times. We are all human. Have a good look at your contract of employment and see if there is anything there that can give you some leverage to at least get a good reference from them.

 

Good luck

Kind regards

Gemspan

[MrShed]

Internet usage cannot be gross misconduct unless the actions were illegal. As gem says, was there an internet usage policy? If there wasnt then there is nothing they can do.

 

I suspect this would be classed as unfair dismissal.

[gemspan]

My thoughts exactly Mr Shed but am glad somebody confirmed it. I would definitely take a look at T&Cs of employment and get in touch with ACAS or CAB for help.

 

Kind regards

Gemspan

[MrShed]

In any event, its worth remembering that references are usually a set series of questions...it is unlikely that these circumstances would come up to be relayed in a reference.

[Sidewinder]

In any event, its worth remembering that references are usually a set series of questions...it is unlikely that these circumstances would come up to be relayed in a reference.

 

The killer question nowadays in a reference is "Would you employ this person again in the future?" which avoids them having to qualify why not, but can be a fairly damning response on its own.

 

That said, I agree with the comments above in that you need to look at the company's internet useage policy and establish whether you have actually done anything wrong. No policy = no disciplinary action unless your actions were illegal or likely to bring the company into disrepute and a reasonable person would have known that they were.

 

How long have you worked for this company?

[MrShed]

Very true SW

[keentomoveon]

Hi everyone

 

Thanks for replying - the information is really useful. Im not looking for a fight, I just want to know that this is over and wether it was done the right way.

 

I have worked there for 1year 9months. I need to find my contract about internet usage - I cant remember.

 

Should I have received a written warning first? To explain that I was using the internet too much and then given a chance to make sure I didnt? I received no verbal warning about anything, I just got called into the room to discuss what went wrong with the project and I told them how I felt it went wrong. I made mistakes and I admitted that but they werent down to internet usage.

 

Can you sack without giving someone a written warning and a chance to improve?

 

Im going to CAB tomorrow to make sure everything is okay and understand where it is I stand.

 

I fully accept I made some mistakes, but given the set up of the company I feel that those mistakes could have been avoided by better management. I accept that by making those mistakes I contributed to them losing a client but I wasnt the only issue in the process, printers let them down and client signed off the whole project before noticing that something wasnt right.

 

I have a baby on the way in 7 weeks and im so scared and frightened right now - I just need to know that this is the end to a very awful 6 months at work and that they cant turn around and start claiming for things. I just dont know how it works as this has never happened to me before.

[gemspan]

Hi there

 

You should be feeling like having a fight if they forced you into resigning without due cause. You have a baby on the way and you will need all the money you can get.

 

The internet usage policy should be in your T&Cs. However, I have been thinking that because they lost the client they may not have been able to afford to keep you on and have looked at ways to try and get rid of you. As you have been with the company for more than 12 months you can apply to an employment tribunal.

 

Have a good look for your contract. It seems to me that you may have a very good chance of claiming constructive dismissal ie they made your life to untenable you could do nothing but leave!!!

 

Good luck

Gemspan

[CBSH]

Sounds to me as though they didnt want to pay maternity?

[elche]

Sounds to me as though they didnt want to pay maternity?

 

This may well be their motivation.

 

If it was then they are foolish, as an employer can recover SMP paid to employees, at either 104.5% or 92% from HMRC.

[keentomoveon]

I checked my contract - it says nothing in there in terms of internet and email usage.

 

There is not one section devoted to it - it doesnt even mention it.

 

Does that help me?

[gemspan]

Hi there

 

Yes, it most certainly does! In my opinion you now have grounds for constructive dismissal because they gave you the option to have gross misconduct on your record or resign. You chose the latter and hence they gave you no alternative but to resign. Bearing in mind that they were using internet and email usage as the cause of the gross misconduct and there is nothing in your contract to say this constitutes this, I think you have a good case.

 

Also, what, if any, procedures did they follow as set down in the contract? Did they advise you of your internet usage etc., prior to the meeting?

 

Gemspan

[Jase1982]

Hi there

 

Yes, it most certainly does! In my opinion you now have grounds for constructive dismissal because they gave you the option to have gross misconduct on your record or resign. You chose the latter and hence they gave you no alternative but to resign. Bearing in mind that they were using internet and email usage as the cause of the gross misconduct and there is nothing in your contract to say this constitutes this, I think you have a good case.

 

Also, what, if any, procedures did they follow as set down in the contract? Did they advise you of your internet usage etc., prior to the meeting?

 

Gemspan

 

Surely if it went to a tribunal they would look at what is reasonably acceptable within the workplace with regards to internet usage....or what a reasonable person deems acceptable practice for internet usage within the workplace? Just because it is not in the employment contract, if the employee spent in excess of a few hours a day on the internet, it would be fair to assume that any reasonable person would deem that to be unacceptable use of the employers facilities, therefor amounting to gross misconduct....

 

Not an expert, but that would be my argument if I were the Employer and I don't know how many hours are alleged to have been spent on the internet for personal use, but I would even go so far as saying that any personal usage of the internet during work time could be seen as unacceptable.

 

Having said that, I'd have said the OP had a case before resigning from the position. Resigning intimates that the OP accepted the companies investigation and final decision,so, then performing a U-turn and claiming unfair dissmissal would seem odd, unless you claim to have been mislead by your employers in some way I suppose.

[gemspan]

Hi there

 

I'm sorry I beg to differ Jase!!! If what you are saying were to be the case then any employer could decide what they consider to be gross misconduct without advising their employees of the same. What you suggest would, in my opinion, be grounds for disciplinery and perhaps a verbal warning, but not dismissal on the ground of gross misconduct. If the OP were visiting child porn sites, sites on terrorism etc., then that would be different. It is up to a manager to "manage" and if they had been "tracking" his internet usage then they coud have intervened before they did and hence "warn" the OP that they regard his behaviour as unacceptable.

 

If the OP was unaware that he was being "spied" on and was called in to a

meeting then of course he would be shocked when this allegation of gross misconduct was put before him. I have had the unfortunate task in my previous life of having to dismiss employees but would never think of doing this before every avenue was exhausted and help and support offered to try and correct things.

 

Resigning does not intimate that the OP accepted the company's investigation. If this was the first he had heard of it then I would imagine that he didnt know what to think. How many times have you made a decision on the spur of the moment and then looked at the facts surrounding that decision afterwards?

 

Kind regards

Gemspan

[Jase1982]

I was merely making a point based on a purely legal footing. What you are saying is what you think the punishment should be, which I have no opinion of.

 

I agree, it is up to the manager to manage, but any company is also entitled to expect a certain level of professionalism from their employees. Now, if an employee was sitting on the internet for large parts of the day that could amount to gross misconduct as a professional employee should recognise that as unacceptable. In an adult professional world employees should be given free reign to do their jobs without the need to be closely monitored. I will always champion that opinion because I've experienced workplaces where every action is closely scrutinised and you are watched, which hinders the way you work and decreases production time in the long run, and further mistakes are made.

 

I sense now that this is getting off topic.....

 

Resignation does intimate you accepted the decision because there, at the time, were two choices and the decision was taken to walk away. If you are then saying that other factors were realised at a later date, that is where I would say the company misled you into agreeing to resign.

 

I don't agree that it is unfair dismissal because any company is entitled to expect an employee to have an idea of what is deemed acceptable within the workplace....the OP has admitted the offence and was warned, which is why they said gross misconduct charges would be filed on his permanent record. He chose to resign.

[gemspan]

Hi

 

Can I ask, what legal argument are you referring to Jase1982? I am basing my argument on the fact that there is no mention of internet usage being grounds for gross misconduct in the OPs terms and conditions of employment. That said, the organisation cannot just then turn round (without advising the OP that his internet usage was unacceptable!) and make this grounds for gross misconduct or ask for his resignation!!! That, in my opinion, is completely unacceptable on the part of the employer.

 

What was wrong with the OP's manager having a quiet word in his ear and mentioning his use of the internet? After all, that is what manager's are paid to do!!

 

The employer clearly misled the OP by advising him that they would place a record of gross misconduct on his file when internet usage is not stated in his terms and conditions of employment as a basis for this. On that basis, he was then offered the opportunity to resign. I assume that the OP would not have tendered his resignation had he known his rights under the T&Cs at the time.

 

Generally, people like to have clear guidelines to work within when working for an employer. Giving people the opportunity to be autonomous is great but they must work within the guidelines given. What you believe to be unacceptable, I might consider to be acceptable! If we were both managers and I was working one day and accepted a behaviour and you were working the next and didnt accept a behaviour, that would cause discontent within the workforce. The world is full of differing opinions as to what is acceptable etc., and hence the laws relating to employment rights were brought into force to try and bring some unity to this area.

 

THe OP was not warned. The meeting was the first he heard that he had been "spied" on while at work. That in itself, in my view, is unacceptable.

 

I would most certainly be taking this employer all the way. The OP has been treated very badly. This situation could (and should!) have been handled a whole lot better by the employer.

 

Kind regards

Gemspan

[Jase1982]

So basically, you're whole argument in court would be ignorance? would you stand up in front of a judicial panel and say that internet usage wasn't defined in your contract so you thought it acceptable to spend a vast majority of the companies time on the internet?

 

that's just dumb. A lot of things aren't defined in an employees contract, yet we all know what is acceptable because we're supposed to be professionals and adults.

 

Guidlelines are set for certain things that need defining, like timekeeping and lunch breaks. Grievances. Holiday. Sick leave. etc.

 

The offer to put a black mark on the permanent record was the warning. Everyone's spied on at work, if your internet usage goes up it will always be communicated to your line manager. Yes, in a perfect world the manager would have spoken to the OP, but is also well within his rights to monitor the situation if he believes there to be a misuse of company property, or in this case, time.

[gemspan]

So basically, you're whole argument in court would be ignorance? would you stand up in front of a judicial panel and say that internet usage wasn't defined in your contract so you thought it acceptable to spend a vast majority of the companies time on the internet? No, but you and I don't know the amount of time the OP spent on the internet do we? You are just assuming that he spent a vast majority of time on it. Again, where was the manager? Isn't he supposed to be managing? Again I ask, what legal argument ie law are you referring to? I am referring to what is written as T&Cs and that is what the OP signed up to. You are presuming an awful lot here!!!

 

that's just dumb. Please do not insult me!!! I am not dumb!! A lot of things aren't defined in an employees contract, yet we all know what is acceptable because we're supposed to be professionals and adults. Not everybody is an adult that works and not everybody is a professional hence the need to define exactly what the employee's T&Cs are!! If there is not an internet usage policy and internet usage is not defined as grounds for gross misconduct then it cannot be used as a basis for that! End of story! As soon as the OPs work was shown to be affected by a mistake then the manager should have stepped in to see where things were going wrong. By his own admission he has said that there were many parties involved in the mistake not just him. Were they all subjected to being "spied" on; do they use the internet; were they given the same treatment. Many factors are at play here.

 

Guidlelines are set for certain things that need defining, like timekeeping and lunch breaks. Grievances. disciplinery procedure, what constitutes gross misconduct, Holiday. Sick leave. etc. none of that written in red has been carried out by the company professionally.

 

The offer to put a black mark on the permanent record was the warning. Everyone's spied on at work, if your internet usage goes up it will always be communicated to your line manager. And a good manager would have a chat to you about it and find out the reasons behind it. Yes, in a perfect world the manager would have spoken to the OP, not a perfect world - if the manager was doing his job properly but is also well within his rights to monitor the situation if he believes there to be a misuse of company property, or in this case, time. Well, I can't comment on your last assumption because I don't know what constitutes a breach of a person's human rights we were always advised that our emails, internet usage etc., could be tracked.

 

I do appreciate that everybody is entitled to their own point of view but I thnk your argument at the moment is based on quite a lot of assumptions without knowing the facts. I have asked exactly what is set down in T&Cs. I think my points are pretty valid and I would be happy to stand up in front of a panel and argue my case in that regard. What you seem to be suggesting is that "he should have known better". Don't think that is quite how it works. Would the panel not argue that he couldn't have known better because he wasnt advised that what he was doing was wrong - even although they monitored him over a period of time and had every opportunity to approach him to discuss the matter?

 

Just my thoughts of course but then you think I'm dumb!!!!

 

Kind regards

Gemspan

[Sidewinder]

Problem is that a complete lack of policy can work either way. It isn't always about what is reasonable, or what the average man might consider appropriate use, it is about defining boundaries which either prohibit use altogether, or which strike a balance between the needs of the business and allow a certain use of the facility.

 

Whilst I take Jase1982's point about employees spending a lot of time on the internet and basically stealing time from the employer, one first has to understand what is 'too much' An employee might indeed know that spending three hours in a day on Facebook is unacceptable, but at exactly what point would the employer deem this to be the case? An hour during the lunchbreak is OK? Who is going to complain then about an hour and 5 minutes? What if that is pushed to an hour and a half? You could then discipline one member of staff but not another and before long you are being accused of discrimination, so it is not even acceptable to say that 'employees may make reasonable use of the internet' as somebody ultimately has to set the clock on what is reasonable.

 

Much easier altogether to have one of two policy statements:-

 

'The Internet is provided for business use, however employees will be permitted to use this facility for personal use during scheduled rest periods only, and subject to conditions X, Y and Z (regarding content, online gambling, downloading executable files etc)'

 

or

 

'The internet is provided solely for business purposes and employees are not permitted to use this facility for personal use. All internet usage is monitored and any activity not related to work activities may result in disciplinary action being taken against the employee concerned'

 

A lack of any policy whatsoever means that the employee cannot possibly be disciplined. Disciplinary action is the consequence of a breach of the rule, and if no rule exists then no breach can occur. Whether the employee knows better or not is largely irrelevant as to establish this involves a judgement. Against what precise measure is he being judged in order for the action to be 'fair'? In the absence of a rule, the employee can absolutely claim ignorance in front of a Tribunal. He may have previously worked for an employer where unhindered internet access was the norm, and unless advised otherwise could reasonably assume that if the internet is available, it is acceptable to use it at will.

 

Perhaps most importantly, an employer monitoring internet and personal e mails without having a policy in place may find themselves in breach of the Data Protection Act, in collecting personal information about an employee without informing the employee about the purpose of such monitoring, and even Article 8 of the Human Rights Act relating to the privacy of personal communications. The OP might also like to add that to the armoury.