Unfair Dismissal for Gross Misconduct?

[Pandrawr]

Hi guys,

 

Firstly, I'm sorry that this is my first post, but I've been racking my brains all night researching law/employment/rights etc and was finally recommended this forum, so I'm hoping someone can help clear one or two things up for me, one way or another!

 

Yesterday (10th June) I was dismissed from my job without notice and without pay in lieu - I genuinely believe this is unfair.

 

Some quick background; I worked remotely (Offices are based in London, I'm based in Glasgow), have been in contract with them since the 1st April 2015, was full time (40 hours minimum per week to average out over the course of the month), and took many concerns, wherever possible, to my manager (including not having any breaks on 7/89/10/11/12 hour shifts, all of which required me to be in front of the computer at all times). I was told to basically deal with it while the company employed more staff and trained them up accordingly in order to reduce the hours I worked.

 

Basically something happened within the company over the weekend and I, admittedly, flew off the handle about it - I got very angry in a personal discussion between myself and a colleague (not a manager). At no point did I put the company at risk, their clients, the company's reputation, or falter in my work - The discussion was (what I believed to be) a personal discussion between myself and a colleague. Long story short, my colleague took back what I had said to my manager, who issued me with a written warning on Monday morning - To clarify, this warning was not sent in the post or through e-mail, but provided via an internal messaging client (much like Facebook Messenger) that was used for agents and staff to speak with each other.

 

I, personally, didn't agree with this warning, but accepted it and wanted to move on; Tuesday night, the same colleague and I were having a further discussion - a general conversation about our day and so on. He eventually moved on to the topic of the issues over the weekend, and riled me up to the point where I said to him, using much more colourful language, that if the company were to dismiss me, I would take them for everything they've got. My colleague assured me it wasn't his place to take that back to management - of course, he did, and here I am.

 

A stupid thing to say - Yes. Grounds for gross misconduct and immediate on-the-spot over-the-phone sacking? That's what I'm not too sure about.

 

The manager who decided to sack me actually told me partner (who works for the same company) before he told me - So I actually found out from my partner before the company - Is it either fair or legal to tell a different employee that a colleague is getting sacked before that colleague is made aware? There was also no investigation, no disciplinary hearing/discussion, no chance for me to put across my point of view or have my say, no mention of any pay owed to me for the hours I have worked, no mention of an appeal being allowed, and no mention of any of the disciplinary procedures set out in the contract (which is very sparse, and does not cover ANYTHING with regards to what they class as gross misconduct - The disciplinary steps are stated in the contract, none of which have been followed).

 

I am aware that I have MUCH less than the 2 years service required to go to an employment tribunal; I'm also aware I already had a written warning, as far as the boss was concerned, despite the fact it was written to me over an instant messaging service and wasn't supplied in a formal, written method. Yes, I should not have said what I said, but I'm not 100% positive that a dismissal was a necessary next step - He never even mentioned in the phone call that it was classed as gross misconduct, the words never even came up, he just called me to say he had no choice but to dismiss me in order to protect the company. That was it. No 'You're being dismissed for Gross Misconduct', no 'You're being dismissed because you said/done this', no appeal information, just 'you're being dismissed, we had no choice, sorry'.

 

I have so many questions regarding this I'd feel cheeky asking them all here when I've just joined, so I suppose the biggest question is; Do I have any grounds whatsoever for wrongful/unjustified/etc dismissal? I don't believe the correct procedures were followed leading up to the dismissal (there was no formal investigation or discussion for the written warning, either), I don't believe the correct procedures were followed for the written warning, and my partner was informed of my dismissal before I was, meaning my boss had already made up his mind on my dismissal long before speaking directly with me.

 

If anyone has any advice, that would be very much appreciated.

 

Thanks in advance.

[Sidewinder]

Sadly, there really is very little that you can do about this apart from appealing the decision to dismiss and begging to be given one more chance - although I do have to say that the nature of what was said to your colleague is not likely to make the employer feel inclined to do so. No doubt in terms of a lesson learned, the main one here is to never say anything derogatory about the business with colleagues.

 

Legally, the employer is absolutely in the clear here. You have already alluded to the 'two year' issue and that is your barrier to being able to do anything further. Without the right to take action for Unfair Dismissal (which would almost certainly fail anyway due to the nature of the 'offence' - no reasonable employer would consider dismissal a disproportionate act in these circumstances with so little time served), this also means that whether the employer follows due process in making the dismissal. Even if you had not said what you did, and the employer dismissed you completely without reason, you have no means of arguing it other than pleading to their better nature.

 

Within the first two years, an employer can dismiss for the most flimsy of reasons - face doesn't fit, doesn't like your tie/aftershave/shoes etc and the law as it stands means that they do not have to answer to a Tribunal. The only exceptions are where the dismissal is motivated by a protected characteristic - race, religion, sex, age, sexual orientation etc, and even there it would be hard to get over the fact that you said certain things which might amount to disrespect or insubordination.

 

Sorry but I think you may have to put this down to experience. You are however entitled to pay for any work completed plus accrued statutory holiday pay, so if the employer is withholding this then you should make a complaint in writing and outlining the amount that you are due and that holding this back amounts to an Unlawful Deduction from Wages.

[ericsbrother]

You will be entitled to accrued holiday pay (this will be about 12.5% of your total pay received since starting if you havent aken any holiday) and pay in lieu of notice. This is likely to be between 1 weeks pay and a month's depending on your contract or agreement.

As for procedure- you are allowed to appeal the dismissal but as you have been there such a short time I wouldnt bother, just get the money owed to you for the above and ignore the very small gap in your CV as study leave or the like. If they dont pay up then you should calculate exactly what you are due and let them know you will be using the small claims procedure to recover the money owed as a simple breach of contract.