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Appealing summary dismisal at ET for Gross Misconduct, that happened while sick??


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Hi id lick some advice please.

 

I have my Employment Tribunal coming in a week or two.

 

I was summarily dismissed in Febuary this year for alleged gross misconduct.

specificly posting (alleged) confidential material on facebook.

 

This went the the dissciplinarys, and appeals etc..

and as far as i know they follwoered the correct proceedures etc..

 

I am still compiling my evidence statment, getting prepared for the ET.

 

One thing i have been thinking about is,

The alleged gross misconduct happened while i was signed off work for Stress.

would this have any bearing on the trial at all?

 

i went off sick on january 3rd, with sick note for stress. i was again signed off on the 28th januiary for stress. i was phoned and asked to attend a meeting on the 1st febuary. which i did,( in hind sight i shouldnt off, but was informed it was important)

there i was informed about some changes to working patterns, and also potential redundancies in my store. Other collegue were getting briefed the same day.

i put something on FB the day after.and have plenty of evidence showing this being dicusse don another site by other people, though an internal business forum.

When i went back to work, on the 13th Feb, i was suspending pending investigation and subsequently dismissed and appealed etc..

 

 

Also I was dismissed for an alleged first offence,

 

+ could i quote "•Article 10, (freedom of expression)" because the alleged confidential material was already common/public knowledge.

 

Also got these point here which may help me, but unsure of the ebst way of putting all this across.

5. Had the employee done this before ?

6. Did the employer consider warnings, were these used in the past ?

7. Did the employer consider the overall performance of the employee, for example did the employee previously have a long record of good work and behaviour ?

8. Could the employer have disciplined the employee instead of dismissing them ?

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How was it already public knowledge - I'm not seeing anywhere in your post it states this?

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

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ok, it was already on FB, was being discussed by company workers on company forum, and known by collegues in stores.

 

 

PS sorry for all spealling mistakes in original post, thats my quick typing.

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Clearly the company forum and known by colleagues in stores doesnt constitute public knowledge.

 

As for other staff posting it on FB (I assume) that doesnt constitute public knowledge, however you may have an argument that you were singled out for punishment if the other people posting it did not also receive disciplinary action..

7 years in retail customer service

 

Expertise in letting and rental law for 6 years

 

By trade - I'm an IT engineer working in the housing sector.

 

Please note that any posts made by myself are for information only and should not and must not be taken as correct or factual. If in doubt, consult with a solicitor or other person of equal legal standing.

 

Please click the star if I have helped!!

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Do you have a company policy relating to posting articles on social networks or internet forums? If so, was what you posted derogatory, or in any way detrimental to the employer or his reputation?

 

If you have breached a term of your employment, then it is possible for the employer to dismiss for a single act of misconduct, depending on the nature of what you did. There is no aitomatic right for previous good service to negate that act of misconduct.

 

However, the action taken against you should be proportionate, fair, and with regard to action taken against others for similar offences. All lesser sanctions should have been considered and the employer able to justify their actions.

 

Personally wouldn't automatically claim stress as a factor if you are able to demonstrate that what you did was not a reason for dismissal in itself.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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would the stress factor not constitue mitigating factors?

was with the company nearly 7 yrs with no previous warnings etc.. either.

 

Mitigation has no relevance to ET hearings - so this argument would be a waste of your time and effort. Only an employer is obliged to consider - but not obliged to accept - mitigation. ET's will not consdier it at all. There sole interest is whether the offence occurred or the employer had reason to believe it did (which is hardly in dispute) and whether the outcome of dismissal was proportionate to the offence. Your argument will therefore need to concentrate on the latter. Can you demonstrate that other employees did the same thing as you and were not dismissed?

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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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