Employment/Law Advice....?

dellipher

dellipher

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I've put this in Off Topic, as this isnt regarding photography, I'm just inquiring for something for a friend.

My friend was sacked from her company for gross misconduct, on the grounds of general swearing and slagging off her job/the company.

Now before they sacked her they suspended her on full pay for a week until they got more information together - and they were looking into three things.

1. Her swearing. Not at customers/members [a gym] but just in general.
2. Her dissing her job/the company, and questioning management.
3. Bullying of other members of staff.

Now when she had to go for her defence hearing on this, they only asked her on points 1 and 2. And she admitted that she had swore [no members have complained about this] but so does everyone else. And that almost everyone complains at some point or another about their job, but she had never directly slagged off the company. As for questioning management, it was mainly regarding her hours and why she was always put on split shifts. [Eg. she'd work 8-2 then they'd put her back in at 6-10 some days]

Her letter was sent out stating that she had been sacked for gross misconduct, on grounds 1 and 2, and they did not mention number 3 at all.

She has never recieved and written or verbal warnings regarding this so she wanted to, in her right appeal against the decision.

She sent off her appeal letter, and recieved her P45, and I went to where she worked [I'm a member] and they had employed a new member of staff for her job.

She then re-wrote to them asking why they had not responded to her appeal letter, and they wrote back saying they had not recieved it and that as a gesture of goodwill she had 5days to reply to the letter, they even included a SAE in second-class.

She replied, sending it special delivery so she knew they'd have to get it. And they will now be in touch with a date for her appeal hearing.

Whilst this has been going on, and she is still unemployed. She has been notified today from a job that she has been for, that the old employers are now refusing to give her a reference!! [Is that legal?]

So she's going to have to take legal advice, because in her eyes, what she has done wrong does not consititue Gross Misconduct, and other people I've spoke to, agree with her....

Any thoughts?
 
CAB should be her first stop. I'm not certain (and not having exact details) but I think her 'ex' employers fell down badly when they sacked her without warning. Was she represented at all in the hearing? were minutes kept and did she get a copy?
 
Steep said:
CAB should be her first stop. I'm not certain (and not having exact details) but I think her 'ex' employers fell down badly when they sacked her without warning. Was she represented at all in the hearing? were minutes kept and did she get a copy?
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She was at the defence hearing, she could take someone in with her but it had to be an employer of the company, and it seems that they had all been warned against supporting her.
Minutes were taken, she has had to request a copy for her appeal, all that she got informed of, in a letter detailin why she had been suspended, were short statements about her from other members of staff, which were not brought up in the defence.
 
Gross misconduct can be a bit of a minefield, but... If she was swearing & bringing the company into disrepute I'd say the company were within their rights to sack her, I certainly would if it were me. Just because "everyone else" does it doesn't make it right. She admitted it, so she doesn't really have a leg to stand on there.

WRT to giving a reference, there's no legal requirement to force an ex employer to give a reference, as you're not allowed (really) to write anything bad in said reference.

The two questions I'd be asking first would be similar to Steep.. Did she have or was she offered someone to sit with her (another employee or union rep generally). Does she have a copy of the minutes taken at the meeting?
 
mattyh said:
Gross misconduct can be a bit of a minefield, but... If she was swearing & bringing the company into disrepute I'd say the company were within their rights to sack her, I certainly would if it were me. Just because "everyone else" does it doesn't make it right. She admitted it, so she doesn't really have a leg to stand on there.

WRT to giving a reference, there's no legal requirement to force an ex employer to give a reference, as you're not allowed (really) to write anything bad in said reference.

The two questions I'd be asking first would be similar to Steep.. Did she have or was she offered someone to sit with her (another employee or union rep generally). Does she have a copy of the minutes taken at the meeting?
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Right, if you trap your finger in a door, and say [insert swear word here] would you expect to be sacked for it?
If you were unhappy with your hours/jobtask and discussed this with a colleague and then raised it with management, would you expect to be sacked for it? :shrug:

She was told she could have an employee sit with her, but she had to find the person herself. Everyone she asked said No, or they were busy.

She has yet to recieve any minutes taken at the meeting.
 
Ah now you're adding extra into the original passage... You said:

And she admitted that she had swore [no members have complained about this] but so does everyone else
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I doubt they'd sack her over one incident though. If she was unhappy about her hours, she shouldn't have complained to another member of staff but raised it directly with management straight away.

It's standard for the employee to find someone to sit with them, so the company cannot be accused of being biased. If she couldn't have found anyone, then she should've asked for the meeting to be rescheduled.

It does seem that, based on the facts you've given that the company may be being unfair.. whether there's a claim for unfair dismissal I don't know though.
 
I take it there was no union rep or she's not in one? As for the minutes, I'd ask for a copy of the notes written at the time as well, not just some 'possibly' edited later copy.

Tbh even you don't know the full story and so you can't pass it on to 'us'. All you or we can do is advise her in general terms and I reckon the best advice you can give is for her to get down to her nearest CAB.
 
dellipher said:
She was at the defence hearing, she could take someone in with her but it had to be an employer of the company, and it seems that they had all been warned against supporting her.
Minutes were taken, she has had to request a copy for her appeal, all that she got informed of, in a letter detailin why she had been suspended, were short statements about her from other members of staff, which were not brought up in the defence.
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Solicitors will usually give a 30 min free consultation, from this comment it would seem that they may have a case to answer.

http://www.direct.gov.uk/en/Employment/Employees/RedundancyAndLeavingYourJob/DG_10026692


http://www.compactlaw.co.uk/monster/empf9.html
Fairness of Procedure
The test here is whether the employer used a fair procedure and was it reasonable for the employer to finally decide to dismiss the employee once the procedure had been carried out.

Any Employment Tribunal would consider some of the following:

1. Was the employee given a fair hearing by the employer ?

2. What evidence was used at the hearing and was it all used ?

3. Did the employee have a representative at the hearing or a Trade Union official ?

4. If there was more than one employee involved were they all treated in the same way ?

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 ?

9. Did the employee have an effective right of appeal against the decision ?

10. Was the whole procedure carried out in the same way as previous procedures, if not how did it differ and why ?
 
Either way, it sounds like both of them are best going their separate ways... Doesn't sound like they suited each other...
 
Without knowing full details of her behaviour during her time at work from both sides of the fence it's a little diffifcult to give an opinion but I suspect she's playing down her behaviour and they're doiing the opposite. Clearly they felt it warranted action and they took it. Your friend could try and fight the decision but is unlikely to gain much, if anything, from such action. How long has she worked there?

As for not asking about point 3, I would guess the employer found no evidence to support the claim and stopped pursuing it.

Summary dismissal for misconduct doesn't require any warnings. Your friend should read through her contract and see what, if anything, it says about conduct.
 
She has heard back from her employers today regarding her appeal.
It is on Tuesday at 11:30am, however they will ring her at 11am to confirm this. Its at her old workplace.
She can take in a union rep [which she's not part of, nor are any other members] or a member of staff, non who are avaliable.

She has yet to recieve the noted documents which she has requested that were taking at previous hearings, and she has never also recieved a copy of their disciplinary procedure which is a seperate document.

All she has is her contract, which states, the three warnings etc....

She just feels like she's fighting this battle on her own.:(
 
dear me, its not metrodome is it?
 
She should write back stating that time isn't acceptable as she is still waiting for the documents to be sent to her and she cannot fairly appeal without the full facts (as they see it) to hand.

Then.. she should phone a union (General Transport & Workers Union probably - www.tgwu.org.uk I think) and see if they'll represent her if she were to join. Some will, some won't
 
zooki said:
dear me, its not metrodome is it?
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No is not...

mattyh said:
She should write back stating that time isn't acceptable as she is still waiting for the documents to be sent to her and she cannot fairly appeal without the full facts (as they see it) to hand.

Then.. she should phone a union (General Transport & Workers Union probably - www.tgwu.org.uk I think) and see if they'll represent her if she were to join. Some will, some won't
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Thanks Matty :)
 
surely you have the right to take a solicitor to any appeal hearing? them stipulating that it can only be a union member or another member of staff is quite frankly crazy
 
dellipher said:
She was at the defence hearing, she could take someone in with her but it had to be an employer of the company, and it seems that they had all been warned against supporting her.
I'm pretty sure this is a reason for getting the ruling overturned. You are entitled to have a freind, HR representative or a union representative. They can't limit you to it being someone from within the same organisation.
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mattyh said:
I believe... and she'd have to check that she's well within her rights to ask for the meeting to be postponed pending the documents etc, and also because she's not got time to get a representative too :)
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I'm also pretty sure that she can take in representation, whether they work for the company and/or union or not. She could potentially take in "legal" representation for instance.

There was a case bought against a girl where I worked and she asked me to represent her. I discussed this with my boss and HR before I went in. Basically, during the meeting she will be emotional and you could do with somebody being there to "think straight" for you.

I do feel however that this case may not fully justify "gross" misconduct, and that a written warning should have been issued, but they may be looking to cut staff on the cheap, and this is a way of doing it.

Hope she gets it sorted soon...

Steve
 
Well, I'm going to take the opposite viewpoint here. Maybe she ought to be directing her efforts at getting another job - and taking a long look at herself, considering why she has become unwelcome in this particular firm.

AFAIK, a termination for GROSS Misconduct does NOT require previous warnings about her conduct. Maybe she should have had formal warnings first but, warnings or not, she has repeatedly demonstrated an attitude that is not compatible with a good working employer/employee relationship. Not to mention the relationship with other employees. Don't forget, the employer has a responsibility towards the other employees.

And, reading between the lines a little, I suspect the strongest reason for the employer taking this line is Reason 3 in the OP. The fact that this wasn't then brought up in the hearing and the letter will probably be due to the employer not wishing to request other employees to give evidence at the hearing. Or maybe other employees didn't wish to give formal evidence despite previously complaining of her bullying activities.
 
Jelster said:
I'm also pretty sure that she can take in representation, whether they work for the company and/or union or not. She could potentially take in "legal" representation for instance.
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It's a while since I had to worry about staff, but I'm fairly sure you are not allowed legal representation.
In my day it used to be union rep or colleague.
They are mainly there as a witness (for protection of both parties)
 
The TGWU has merged with another union Amacus and are jointly now known as 'Unite The Union'. Dumb name or what? My wife works as a PA for them and tells me they will not take on cases in progress for new joiners and does not believe any other union will do so either.

She advises checking her terms and conditions of employment to see exactly what is specified as gross misconduuct. Swearing usually is.

She feels that swearing apart, if she was dissatisfied with her working hours , she should have written a letter to the company, specifying her exact grievance and submitting the letter via a line manager.

The company only have to have a reasonable belief that misconduct has occurred, and do not need to give warnings in the first instance.

Your friend should be aware that if the case goes to tribunal at her instigation, she stands to incur all the costs of the case if she loses.

Only my opinion, but I'd just move on. ;)
 
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