Gross Misconduct

[Sidewinder]

I absolutely agree with Lookingtobuy - the investigator should not be recommending anything other that in his opinion the matter warrants a disciplinary hearing. His opinion is prejudicial and a breach of the disciplinary process, as is his advice that you should resign before you have actually been found guilty of anything.

 

You should never resign your position without a correctly drawn up compromise agreement guaranteeing (at least) a mutually acceptable reference. In resigning you would lose basic employment rights with little means of redress, and the employer would still be at liberty to advise a future employer that you resigned whilst the subject of a disciplinary hearing.

 

You should go ahead with a disciplinary hearing and make sure that this is carried out properly, which should mean that you have:-

 

1. Written notice of the meeting, an outline of the allegation, and a warning as to what the result might be if you are deemed guilty.

2. The right to have a witness (work colleague or TU Rep) present

3. Written details of the findings and outcome, together with a right to appeal.

 

A crucial issue though is how long you have worked there. If less than 12 months then the fact that they may breach procedure is irrelevant as you may not bring a case for Unfair Dismissal unless you believe that their actions were discriminatory.

[Sidewinder]

Right. The situation is that if the employer fails to follow procedure, then any subsequent dismissal is 'automatically unfair', however the law says that you may not bring a case of Unfair Dismissal to a Tribunal until you have completed 12 months service unless the dismissal is due to one of certain exceptions permitted, most notably in circumstances of discrimination.

 

Unless you believe that this is the case, sadly you have a dilemma. The employer can in essence dismiss you for any reason he chooses, safe in the knowledge that there is little you can do. How likely is it that you can defend yourself against this allegation? It may be time to discuss the resignation option after all.....

Edited November 7, 2008 by Sidewinder