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Being threatened with Gross Missconduct


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I have been dismissed by my employer who head hunted me from a large corporate. They have clearly acted badly but not sure how to progress.

 

Background

 

I am serving my gardening leave as I was walked off the premises and told they would get back to me. I then received a letter terminating my employment which given only 10months service inc notice they can do.

Real reason for dismissal is that they are maybe 30 strong business but the MD/owner run's the company on almost 100% illegal Microsoft & Adobe software probably about 30-40k’s worth

 

I raised this with the MD when it became clear to me. Response was "cash flow was really tight and best not to address it now". I raised it again when I was instructed to build new PC’s for new starters and did not want to install illegal software. And raised it a third time after >100k was spent on directors cars and STILL all software was cracked or cloned. Within 4 weeks of this I was put on gardening leave, some days after requested and received reason for dismissal "as my job not required and not able to sell enough"

 

Other Potentially Useful Details

 

1. I had no contract of employment until 5 months after starting

2. I had no job description ever

3. I had no training or mentoring

4. I had no warnings or disciplinary until walked off site

 

A contract was forced on me 5 mths after starting that has all sorts of limitations, errors and inconsistancies not least was a reduction in notice period to what had been discussed, effective gagging order, limits about who I can approach for work etc. and a clause about data return. It was made very clear sign it now (had 48hrs) or leave – how could I do anything apart from sign as my career had been shot and would show only a few months with an employer (who has historically churned staff nearly always within the 12month window) who was operating illegally and I wanted to help change for the good and safety of all 30 staff.

 

Now I am serving my notice period and so far they have paid me while on garden leave but they have now asked for all company data and documents back. I have written back saying they can collect now all documents that do not pertain to any future action I will take (which has to be within 90 days of termination date I believe), & all company property has already been returned

 

I have meetings with CAB in a week and likely the BSA thereafter but now the company have had their lawyers get heavy saying if I don’t return ALL documents immediately then they will pursue me for Gross Misconduct – and are not limiting other action.

 

HELP I don’t have a lot of money I can throw at this and need to provide for my family but given the bullying tactics adopted by the MD and typical instruction like just "F***ing do it" throughout my time there if I return all email trail then I will have no way of substantiating my case, which is clearly what they want.

 

I would value some advice as there is a long trail of career damage this small company has created, my own included, and because they DO have the cash and the Legal Insurance they will fight.

 

I have to respond very soon to the legal letter so quick response is really appreciated

Edited by mt2006
typo
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Hi

 

Don't return any document to your previous employer that may be of use to your claim in future litigation.

 

Any gagging order within a contract that details illegal activity would not be valid in any case, and neither would the contract.

 

This is a serious situation and you should consult a solicitor as soon as.

 

Do you have home insurance where the policy could well cover employment disputes?

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Blowing the whistle on wrongdoing is one of the exceptions to the requirement for one year's service.

Post by me are intended as a discussion of the issues involved, as these are of general interest to me and others on the forum. Although it is hoped such discussion will be of use to readers, before exposing yourself to risk of loss you should not rely on any principles discussed without confirming the situation with a qualified person.

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Thanks WierdAl - I am not suggesting the contract was as a result of me knowing that the business is operating illegally, as far as I can tell it's proabably the same as was issued to all staff at that time. However on termination;

 

it prevents me speaking to suppliers, staff, customers and approaching potential clients for a job - given the industry this is a BIG issue - of course some have contacted me via phone or business network & I have had to tell them I have been instructed I cannot speak with them until after the imposed contractual period - I'm sure they will try and use this against me also.

 

The word was out on release of the contract sign it or go - just in line with the owners normal bullying in day to day business. Most other employees would not have the first clue that the company is operating on illicit software so I don't believe the contract was crafted specifically for that purpose.

 

Regrettably I don't have legal cover, hence why I am off to the CAB. Clearly I don't wan't to return those files that may be required for litigation but I've been told I have to by return otherwise I am in breach and they'll pursue for Gross Missconduct - can I give to a third party, to hold, are there any legal aid/advice lines that could advise?

 

I have been very clear that all none related data they can have (they almost certainly have copies of everything anyway) as I have no need or desire for it.

 

By the way is it the MD (owner) who is personally liable or does it end up being the "company" which may amount to the same thing but if there was a risk of a personal criminal conviction my guess is they would behave differently

 

Thanks for taking the time to review

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Hi

 

I am going through a similar experience and would offer the following advice if you are considering self litigating to keep costs to a minimum-

 

Post on here! (obviously)

 

Purchase Employment Tribunal tactics and precedents- invaluable. First chapter free on Employment Tribunal Claims

 

Familiarise yourself with standard disciplinary and dismissal procedures/ grievance procedures (acas website) Acas - How can we help?

 

Contact PCAW (Public concerns at work) and view their website. Lot of whistleblowing case histories on there www.pcaw.co.uk

 

Throughout any grievance or disciplinary process seek advice from employee advice - redundancy, dismissal, discrimination, bullying, harassment

Professional HR advice on side of employees, just £5 per question.

 

CAB just printed off info which you can download from their website anyway re constructive/unfair/ wrongful dismissal without an appointment

 

Only once you have submitted ET1 to tribunal (make sure you are sure of the deadline- acas can advise) and have received ET3 consider legal advice to keep legal costs to a minimum- nick hannings is the best in the field re bullying and can do a full review of your case for approx £500 if you send all supporting documents www.reynoldswilliams.co.uk

Check out also the late Tim Fields bullying website either bully online or bully offine which is a fantastic resource.

Consider joining the yahoo group bully online- loads of postings on there which could help.

Most important advice, you have just 7 days from date of employment terminating to submit an application for interim relief (to protect your salary until full hearing) if you are claiming that you have suffered a detriment for making a protected disclosure. The ET have no power to extend this.

 

(This advice is just from my own personal experience as a self litigant, I am awaiting a hearing date and have not incurred any legal costs to date)

 

Lastly look after yourself and dont get too stessed you will need to dance like a butterfly and sting like a bee especially when the heavy handed tactics start....

 

Hearing dates can be anything up to 6 months away and beyond so be prepared for a lot of waiting around......unless you apply for interim relief within 7 days in which case a pre hearing review is likely to be very fast (within 2 weeks) to consider the continuation of contract/ salary pending full hearing

 

 

Very Best Wishes + Good Luck

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A final note it seems that you have been dismissed with notice and dismissal date is imminent. From my understanding this means that you do not need to undergo the grievance procedures and can submit your ET1 and application for interim relief on date of dimissal.

 

Should you wish to seek resolution (or not!) with your employers then it may be worth submitting a grievance (detailing the claims you will make on ET1)under the modified proceures on the date of your dismissal or included with response to solicitors letter which they should respond to in 28 days without a hearing. This could be tactical also as their response will give you an indication of their defence on the hearing day prior to awaiting an ET3 response given that solicitors have already been instructed....

 

I would suggest that you submit ET1 on date of dismissal claiming possibly:

 

Unfair and wrongful dismissal

 

Failure to protect you suffering a detriment eg dismissal for making a public interest disclosure, detriment of possible gross misconduct charges on your work record for asserting your statutory rights

 

Failure to provide reasonable support to prevent you being bullied

 

Failure to protect your health, safety and welfare under various h + s leg (if for example you are suffering stress as a result of dismissal and have no job to go to so loss of income)

 

Like I say, just from my own experience so still get independent help from here, acas, pcaw, employee advice line, CAB etc with the specifics of your case.

 

Good Luck!

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Perhaps you can clarify - I thought I had 90 days from termination date to notify of claim. I don't wan't to do this before my notice period is served as it would likely mean they won't pay me. They already are failing to pay receipted expenses that are outstanding until all data returned and have history of going legal with ex-employees

 

My real concern is can they chase gross misconduct after firing me for some "not required anylonger" reason. I need to hold onto the data records for a successful case. If so what process will they have to follow and surely a court/tribuneral would regard my position as reasonable given I have returned all property and have immediately made available all data not likely to be relevent to the case. The forced contract does stipulate all data to be returned when asked - and that would be their basis of breach & hence gross misconduct - but on such a basis I can never prove a thing

Edited by mt2006
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I will have to respond to the legal letter demanding "immediately return all data or we may pursue for breach of (forced) contract and gross misconduct" - how long do I reasonably have to respond when told "immediatley"

 

I have made all none related files available for collection by the company and they have been for weeks - do you think I should pass the other info to a third party under instruction to only allow access for assessment for a potential case, therefore removing their competitor awareness concerns - would that be the correct response? - Any one with some Legal knowledge out there?

 

This action I feel would show willing to do the right thing - I can't believe a gross misconduct could stick for not returning data that may be required to show (in the public interest) illegal operation of the business...

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Hi there

 

If the contract you were made to sign is void due to the fact that the company are operating illegally they cannot take you for gross misconduct. I would write to them and advise that you are taking the matter to the police to see what they advise you should do.

 

They know that they are operating illegally and IMO if they even tried to take you down the gross misconduct route it would be thrown out because they forced you to act illegally!!!

 

Maybe I'm wrong but that's the way it would seem to me!! Hope somebody else can advise if I am wrong.

 

Good luck anyway. What a horrible situaton to be in.

 

Kind regards

Gemspan

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