Dismissed for Gross misconduct within 48hrs

[EAWR]

Hi

 

I hope i can explain this clearly enough for people to understand.

 

 

I was recently dismissed for gross misconduct. The reason given for gross misconduct was becuase i carried out a private job for someone that my employer belives was his customer back in 2007 (my employer found out now becuase the person i did the work didnt have my number and knew who i worked for so called the company to get hold of me). This was the sole reason given in the letter of dimissal.

 

However this is where it can get confusing.

 

The person i carried out the work for was never a direct customer of my employer, It was his "new" partner that had used my employer to carry out some work at her previous home back in 2005. But my employer belives that becuase he had carried out work for this persons new partner in 2005 this some how made him "his customer" and i should not have done the work.

 

When my employer found out i had carried out this work back in 2007 he dismissed me for gross misconduct 48hrs later. I was never given any warning, shown any evidance, invited to a meeting to discuss anything. just simply instantly dismissed.

 

I have registered an ET1 form and the case has been accepted but in my belive this would not constitute gross misconduct in the first place as we have no employment contracts and my employer has no problem with us carrying out private work anyway. Aslo even the basic ACAS gudlines were not followed ans i was given no opportunity to discuss the matter, but now i have recied my employers tribunal response they are adding things in that have never been mentioned before.

 

I quess my question is can an employer decide themselves what is gross misconduct and can they start to add things in that they have not mentioned in either there investigation into the matter (this was infact carried out after they sacked me) and were not mentioned in there letter of dismissal.

 

 

Many thanks

Edited June 17, 2010 by EAWR

[honeybee13]

Hello and welcome to CAG. This sounds tough for you.

 

In order to get ready for your ET, you need evidence in writing, as much as possible, employment contract, disciplinary procedure,etc and anything else you think will help your case, letters, emails etc.

 

You're right, if you have no contract or disc procedures, then ACAS or directgov terms are assumed to apply.

 

Can you argue against or disprove the things your employer has conveniently added to the ET1? I'm sure you can put your points, but proof is always good.

 

You will need to go through all the points you think are wrong, like the timing of the investigation and put this in your case too.

 

Are you saying you think you've been treated unequally compared with other people who've done private work?

 

Would the client or your colleagues be willing to make statements supporting you?

 

Sorry about all the questions, that's all I can think of for now, but they should help us to help you.

 

Do you have a date for your ET?

 

My best, HB

[Surfer01]

Not sure how things apply over here but if caught doing a PJ it was normally instant dismissal for us as effectively we were stealing from the employer.

Can you show that you used only your tools and materials and none of the employer's material and tools? That also includes transport and telephones.

I was very careful with PJs as you always get some idiot customer that will phone and complain to your work about a job that you had done for them on the cheap. I tried to avoid PJs as much as possible even when I was short of cash.

[Sidewinder]

Notwithstanding that you had no contract of employment, so cannot have breached any contract - therefore no Gross Misconduct (it was not something which you could reasonably have known would be so serious as to warrant dismissal), the failure to discipline you using statutory procedures would almost certainly make the dismissal deemed unfair at a Tribunal.

Edited June 19, 2010 by Sidewinder
Incorrectly worded

[Bigredbus]

Hi,

 

Could you draw a timeline for us, please?

 

(a) you say that you have done that work in 2007... and been dismissed in 2010?

[EAWR]

Hi

 

Thanks for all your responses so far.

 

Firstly Honeybee13.

 

I have gone through everything and most of it is dissproved by previous letters i have recieved form the employer IE, he claims one thing in the ET response yet says somethign different in previous letters.

And he also states in the ET response thay he doesnt mind us doing private work, but not for existing customers. but what is an Existing customer ? bearing in mind that i did the work for Mr x and my employer last did work for Mrs Y in 2005, Mr x and Mrs Y move in together in 2007 and I do some private work under the direction and instruction of Mr x. Becuase my employer did work for Mrs y he belives that i stole his customer, Surley it is down to the customer who they use to do the work.

 

I was contacted on my own phone directly, i was never contacted on a company phone, I didnt go to have a look at the job on behalf of the company and then undercut the price so i could do it privatly all of which the employer agrees with in the ET response.

 

 

And secondly for Bigredbus

 

Mrs y has work done in 2005 by my employer

 

Mrs y moves in with Mr x in 2007 and i carry out some private work

 

Mr x phones my employer to get hold of me as he no longer has a contact number for me in 2010 (a Monday)

 

My employer comes to the site (tuesday) where i am working at and tells me mr x is trying to get hold of me, and metions that "wasnt mrs y my customer" (lasted all of 5 mins)

 

Wednesday I was not able to get into work due to snow,

 

Thursday unable to get into work, then knock on the door my employer is stood there and hands me a letter of instant dismissal for gross misconduct effectivly saying "After speaking to Mr x on Wednesday i am being dismissed for Gross misconduct becuase i carried out a private job in 2007 for Mrx and Mrs y when Mrs y was a customer of my emploer"

 

So the effective "investigation" was from the monday to the thursday during which time other then a brief 5 min discussion at a job i was working on, i was never contacted / informed of any disciplinary action / or even given the opportunity to give my side.

 

Incidently my employer was able to get to my house but parked up at the main road and walked the last 180m to my house. He is now saying that becuase he managed to get to my house i should have been able to get to work so was therefore also "absent without authorisation" something he is now saying in the ET form

 

Again many thnks for taking the time to read through and respond.

[Uncertain]

Notwithstanding that you had no contract of employment, so cannot have breached any contract - therefore no Gross Misconduct (it was not something which you could reasonably have known would be so serious as to warrant dismissal), the failure to discipline you using statutory procedures would almost certainly make the dismissal automatically unfair.

 

Sorry but much of this is wrong!

 

The OP does have a contract of employment by virtue of the fact that he worked and the firm paid him. What he may not have is a written statement of the terms of his employment. This is a technical breach on the part of the firm and MAY attract a small penalty if he wins an ET case brought for some other reason.

 

With very few exceptions in English law a contract does not have to be in writing to be binding. Obviously it is easier to prove what has been agreed if it is..........

 

So, what it comes down to is did he / should he have reasonable known that the firm did not allow staff to do private work (if indeed that was their general policy and not one they are making up as an excuse in this case only).

 

If it was well know amongst the staff that this was not allowed then he has a problem.

 

We then come on to whether or not this was GROSS misconduct warranting instant dismissal without notice or a lesser matter.

[Bigredbus]

Hi

 

Thanks for all your responses so far.

 

Firstly Honeybee13.

 

I have gone through everything and most of it is dissproved by previous letters i have recieved form the employer IE, he claims one thing in the ET response yet says somethign different in previous letters.

And he also states in the ET response thay he doesnt mind us doing private work, but not for existing customers. but what is an Existing customer ? bearing in mind that i did the work for Mr x and my employer last did work for Mrs Y in 2005, Mr x and Mrs Y move in together in 2007 and I do some private work under the direction and instruction of Mr x. Becuase my employer did work for Mrs y he belives that i stole his customer, Surley it is down to the customer who they use to do the work.

 

I was contacted on my own phone directly, i was never contacted on a company phone, I didnt go to have a look at the job on behalf of the company and then undercut the price so i could do it privatly all of which the employer agrees with in the ET response.

 

 

And secondly for Bigredbus

 

Mrs y has work done in 2005 by my employer

 

Mrs y moves in with Mr x in 2007 and i carry out some private work

 

Mr x phones my employer to get hold of me as he no longer has a contact number for me in 2010 (a Monday)

 

My employer comes to the site (tuesday) where i am working at and tells me mr x is trying to get hold of me, and metions that "wasnt mrs y my customer" (lasted all of 5 mins)

 

Wednesday I was not able to get into work due to snow,

 

Thursday unable to get into work, then knock on the door my employer is stood there and hands me a letter of instant dismissal for gross misconduct effectivly saying "After speaking to Mr x on Wednesday i am being dismissed for Gross misconduct becuase i carried out a private job in 2007 for Mrx and Mrs y when Mrs y was a customer of my emploer"

 

So the effective "investigation" was from the monday to the thursday during which time other then a brief 5 min discussion at a job i was working on, i was never contacted / informed of any disciplinary action / or even given the opportunity to give my side.

 

Incidently my employer was able to get to my house but parked up at the main road and walked the last 180m to my house. He is now saying that becuase he managed to get to my house i should have been able to get to work so was therefore also "absent without authorisation" something he is now saying in the ET form

 

Again many thnks for taking the time to read through and respond.

 

(a) Do you have a written contract/statement of employment particulars?

(b) If yes, check if there are any restrictive covenants preventing you from contacting/working for existing, or past customers.

© Check the content of the disciplinary procedure.

------------------------------------------------------

(d) Work carried out for Mr x and Mrs Y in 2007, by you!

(e) As any work been carried out for the above customers between 2005 and the present day? (carried out by your employer).

 

I note that they failed to follow procedural requirements...

[EAWR]

(a) Do you have a written contract/statement of employment particulars?

(b) If yes, check if there are any restrictive covenants preventing you from contacting/working for existing, or past customers.

© Check the content of the disciplinary procedure.

------------------------------------------------------

(d) Work carried out for Mr x and Mrs Y in 2007, by you!

(e) As any work been carried out for the above customers between 2005 and the present day? (carried out by your employer).

 

I note that they failed to follow procedural requirements...

 

(a) No there was / is no written contract or statement of any sort.

(b) see a

© see a

(d) Yes work carried out for Mr x and Mrs y in 2007 by me.

(e) No, my employer had only carried out work for Mrs y in 2005 and has never done any work for Mr x at any time.

[Bigredbus]

Hi

 

I hope i can explain this clearly enough for people to understand.

 

 

I was recently dismissed for gross misconduct. The reason given for gross misconduct was becuase i carried out a private job for someone that my employer belives was his customer back in 2007 (my employer found out now becuase the person i did the work didnt have my number and knew who i worked for so called the company to get hold of me). This was the sole reason given in the letter of dimissal.

 

However this is where it can get confusing.

 

The person i carried out the work for was never a direct customer of my employer, It was his "new" partner that had used my employer to carry out some work at her previous home back in 2005. But my employer belives that becuase he had carried out work for this persons new partner in 2005 this some how made him "his customer" and i should not have done the work.

 

When my employer found out i had carried out this work back in 2007 he dismissed me for gross misconduct 48hrs later. I was never given any warning, shown any evidance, invited to a meeting to discuss anything. just simply instantly dismissed.

 

I have registered an ET1 form and the case has been accepted but in my belive this would not constitute gross misconduct in the first place as we have no employment contracts and my employer has no problem with us carrying out private work anyway. Aslo even the basic ACAS gudlines were not followed ans i was given no opportunity to discuss the matter, but now i have recied my employers tribunal response they are adding things in that have never been mentioned before.

 

I quess my question is can an employer decide themselves what is gross misconduct and can they start to add things in that they have not mentioned in either there investigation into the matter (this was infact carried out after they sacked me) and were not mentioned in there letter of dismissal.

 

 

Many thanks

 

(a) You have no written contract, or statement of employment particulars, therefore you have no knowledge of possible restrictive covenants. Consequently, you have not breached any provision, unless such provision is a well known practice in your sector of activity.

 

(b) Your employer has, in the past (and present?) allowed employees to carry out jobs outside the employment frame and has not stated this was contrary to company's practice.

 

© As work has been done for Mrs Y in 2005 by your company... can one argue that Mrs Y could be, today, considered as a customer?... mostly not!

 

(d) Your employer cannot add anything unrelated to your case in his response to your claim.

 

(e) The fact that your employer has not provided you with a contract of employment/statement of employment particulars within the first two months of employment will increase the award.

 

(f) The fact that your employer did not follow procedural requirement will not impress the tribunal either... and award will therefore be increased.

Edited June 18, 2010 by Bigredbus

[Sidewinder]

Sorry but much of this is wrong!

 

The OP does have a contract of employment by virtue of the fact that he worked and the firm paid him. What he may not have is a written statement of the terms of his employment. This is a technical breach on the part of the firm and MAY attract a small penalty if he wins an ET case brought for some other reason.

 

With very few exceptions in English law a contract does not have to be in writing to be binding. Obviously it is easier to prove what has been agreed if it is..........

 

So, what it comes down to is did he / should he have reasonable known that the firm did not allow staff to do private work (if indeed that was their general policy and not one they are making up as an excuse in this case only).

 

If it was well know amongst the staff that this was not allowed then he has a problem.

 

We then come on to whether or not this was GROSS misconduct warranting instant dismissal without notice or a lesser matter.

 

In what way was that wrong?

 

I am well aware of the nature of implied contracts and mutuality of obligation.

 

The OP had no contract - which would outline T&Cs including the provision that private jobs were not permitted - so in the absence of any such contract, no breach has occurred, as any terms of employment would be implied by custom and practice. Agreed that if it was well known during the period of employment that such activity was not permitted and could lead to dismissal then it could be argued by the employer that a charge of Gross Misconduct was fair and warranted, however this would be almost impossible to prove without a formal policy.The employer is on very dangerous ground to make this a matter worthy of dismissal without a written understanding or clear precedents existing.

 

As the OP says the dismissal is for doing private work for somebody the employer believed was a customer, but wasn't. This is a sufficiently grey area to warrant investigation, yet:-

 

When my employer found out i had carried out this work back in 2007 he dismissed me for gross misconduct 48hrs later. I was never given any warning, shown any evidance, invited to a meeting to discuss anything. just simply instantly dismissed.

In these circumstances, the failure of the employer to follow the principles could be deemed unreasonable at a Tribunal and any award increased for the employer failing to follow procedures.

 

We then come on to whether or not this was GROSS misconduct warranting instant dismissal without notice or a lesser matter

I am sorry but much of this is wrong!

 

Instant dismissal is only considered fair in exceptional circumstance, for example acts of violence towards the employer or where the employee has clearly repudiated their contract of employment (even if the terms are implied not written - hence something which the OP could reasonably have known might result in dismissal). Even if the employer considers an act to be GM he must still follow statutory procedures or the dismissal will be automatically unfair.

 

It matters not whether it was GM or a lesser matter, the circumstances were not exceptional and the OP was entitled to due process.

Edited June 19, 2010 by Sidewinder
Bad Advice in original post

[Bigredbus]

In what way was that wrong?

 

I am well aware of the nature of implied contracts and mutuality of obligation.

 

The OP had no contract - which would outline T&Cs including the provision that private jobs were not permitted - so in the absence of any such contract, no breach has occurred, as any terms of employment would be implied by custom and practice. Agreed that if it was well known during the period of employment that such activity was not permitted and could lead to dismissal then it could be argued by the employer that a charge of Gross Misconduct was fair and warranted, however this would be almost impossible to prove without a formal policy.The employer is on very dangerous ground to make this a matter worthy of dismissal without a written understanding or clear precedents existing.

 

As the OP says the dismissal is for doing private work for somebody the employer believed was a customer, but wasn't. This is a sufficiently grey area to warrant investigation, yet:-

 

Failure, to consult, failure to investigate, failure to give a right of appeal

All considered automatically Unfair Dismissal

 

I am sorry but much of this is wrong!

 

Instant dismissal is only considered fair in exceptional circumstance, for example acts of violence towards the employer or where the employee has clearly repudiated their contract of employment (even if the terms are implied not written - hence something which the OP could reasonably have known might result in dismissal). Even if the employer considers an act to be GM he must still follow statutory procedures or the dismissal will be automatically unfair.

 

It matters not whether it was GM or a lesser matter, the circumstances were not exceptional and the OP was entitled to due process.

 

Hi 'Sidewinder',

 

I agree with most of your post, to the exception of the red parts...

 

Since 06 April 2009, the new ACAS Code of Practice 1: Disciplinary and Grievance Procedures (2009), failure to follow the Code does not in itself make a person or organisation liable to proceedings. If an employer fails to follow the Code when dismissing an employee, this by itself, will not amount to an unfair dismissal...

[Sidewinder]

Slapped wrist! You are of course correct, however the failure to follow any procedure could still be argued as substantively unfair at a Tribunal and awards increased for the employer failing to adopt the procedures.

 

Original post amended.

[Uncertain]

In what way was that wrong?

 

I am well aware of the nature of implied contracts and mutuality of obligation.

 

The OP had no contract

 

Your statement........

 

 

Notwithstanding that you had no contract of employment, so cannot have breached any contract

 

The OP DOES have a contract by virtue of the fact he worked and got paid. Just because it is not written on a piece of paper titled CONTRACT doesn't mean there isn't one.

[Sidewinder]

Yes. All terms on which either the employee or employer might seek to rely on in a dispute would be ones accepted on both sides as implied by custom and practice.

 

Fine for customary hours, breaks and general day to day activities, but the matter of a dismissal for Gross Misconduct relies on a breach of contract so severe as to warrant dismissal. Would the matter of doing private work or not resulting in dismissal be implied by custom and practice? Unlikely, particularly where "...the employer had no problem with us doing private work anyway....", so it would seem to be customary to do occasional private jobs. To class the OP's actions as a matter of GM would rely on a contractual provision for the employer to make the employer's position safe, or to be such that a reasonable person might know that this could result in dismissal. No such provision = no breach of contract (whether written or implied) = no GM.

 

Apologies if that was not clear.