desperately looking for advice

[DesperateMum1]

My son is 27.

He has worked for a local shop since leaving school, rising from assistant to assistant manager in the 10 yrs.

 

5 months ago he was asked to work at different location for a few weeks due to them having no management in place.

 

He covered this absence a number of times.

 

On his last cover, he decided to take the team out for a goodbye drink the night before his last day.

 

During that night he stupidly made a play for a colleague and asked her back to his hotel.

 

There had been flirty texting and calls between them since he had been there.

 

she said no and he went on somewhere else.

 

He then slept through his alarm and was over an hour late for work.

He arrived and was hungover.

This is not something he would normally do at all, in fact he has been commended for his timekeeping and punctuality in previous reviews.

 

On his return to his normal shop, he was suspended.

The girl made an allegation,

saying he made it uncomfortable for her to work,

that she was refused a day off because she hadn't slept with him

and that he had been drinking whilst working.

 

They held an investigation and found that he hadn't been drinking (other workers statements)

and that the girl had lied about the day off

 

however he admitted to asking her back to hotel.

He left out the fact they had been flirting in his statement.

 

During his hearing, they didn't give him minutes, of the process or company grievance policy.

 

After 6 weeks of suspension they have now dismissed him for gross misconduct for being late

(he was only key holder so shop was shut ie loss of business),

being hungover and abusing his position of trust by asking her back.

 

He has been given no notice of what he will receive (lieu of notice, holiday pay etc) but what concerns us more is

 

1. The reference

2. Accrued flexi time of over 300 hours

 

His contract mentions flexi time is given in place of overtime

but nothing else is mentioned about what happens when the employment ends.

 

Surely they can't expect him to have worked almost 9 weeks overtime for no.pay?

 

He had an exemplary work record before this.

 

As a side..he was asked to take this other shop permanently but refused due to it being so far away.

 

Now I have rollicked him for his stupidity, but I really need to help him too.

 

He has two young children with his ex partner, who he pays maintenance to.

 

We know he won't get JSA, but he has applied for lots of.jobs.

 

He hasn't got to the stage of needed the refenrce yet, but are they likely to say why he was dismissed?

 

I'm hoping someone can give us some advice

[steampowered]

Sorry to hear about this very difficult situation. The dismissal does sound a little bit harsh may be open to an unfair dismissal challenge if your son has the stomach for taking this to an Employment Tribunal. Does he has a formal written statement of the reasons for dismissal? If not, he has a statutory right to request this.

 

On a reference some employers might say someone was dismissed and explain why. But many other employers, especially large organisations, have a policy of only confirming job title and dates of employment with nothing else. It is worth him getting in touch with HR and asking about this.

 

Maybe someone else can advise on flexitime. The first thing would be to carefully check his employment contract to see what it says.

[DesperateMum1]

Thank you Steampowered, I really appreciate your response.

 

Some excerpts from the contract...

 

1. "the number of hours worked in excess of "normal hours" will be allocated to plus flexi, or to overtime, by arrangement with the area manager"

 

2. "termination of employment: The Employee shall be entitled to the following notice:

1 week for 2yrs employment, then one week for each continuous year, up to a maximum of 12 weeks"

 

3. "Any employee summarily dismissed for gross misconduct will only be paid the statutory holiday entitlement, calculated at the statutory min hourly rate and any public or customary paid in the period of accrual will be calculated as one statutory day taken"

 

1. Payment for OT was never offered, and flexi time was rarely agreed because of staffing levels and store being so busy that management was rarely allowed to take the time back

2. So according to this he is entitled to 9 weeks, but does 3 cancel this out?

 

No, he does not have a formal written statement regarding the outcome, although I expect this may be posted out to him in the next week or so.

 

Also, his original contract was signed 10 yrs ago, but his latest one, where he was made asst manager was only done 18 months ago. Does that mean he only has continuous employment for 18months?

 

Thanks again, I really do appreciate your help

 

Edited to respond to Steampowered question

[steampowered]

He should get paid for the time he has worked (which I imagine should include flexitime) and for outstanding holiday entitlement (based on the statutory minimum holiday of 5.6 weeks' a year).

 

As he was dismissed for gross misconduct he will not be entitled to any notice pay. However he would normally get paid for the 6 weeks spent on suspension.

 

A promotion doesn't affect the period of continuous employment, time spent as a more junior employee counts.

[Pusillanimous]

Even if found guilty of Gross Misconduct, a dismissal still has to be a reasonable option. For example, he could have been moved away from this woman, with a final written warning.

 

He should appeal the decision on the grounds of previous exemplary good record.

 

If there is proof he is owed wages, then a claim can be made as an unlawful deduction.

[SabreSheep]

I Cannot stress enough how important ti is to lodge an appeal.

 

Failure to follow the appeal process in most cases can result in reduced chance and outcome from employment tribunal.

 

Traditional grounds of appeal can include the following grounds.

 

*Procedure was not followed*

*Hearing was unfair*

*Present additional evidence*

*Outcome was to harsh/Not appropriate*

 

He would need to be able to argue his case on those points.

 

Time owed in Leiu of payment before the dismissal should be paid as this cannot be taken away from him as an extra punishment.

 

If not a union member I would advise he gets his appeal in within time limits and also seek advise from CAB Also request copies of all notes etc taken in investigatories and the hearing. Always read the notes before signing they are an agreed record.

 

And remember if not a union member he still has the "Right to be accompanied" at disciplinary and appeals.