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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46155
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi there, Could I please seek further advise on the allegations

Resolved Question:

Hi there,

Could I please seek further advise on the allegations against me. These are for gross misconduct which I think is really unfair considering the situation directly relates to one of the managers who report to me. He has apparently carried out fraudulent activity but I am being held responsible for not ensuring the processes were in place to prevent this.

Is this right and fair considering:
1) I have raised with my manager on a number of occasions that the person who carries out the process is not doing their job correctly (as my manager manages him directly as well as myself. Nothing has been done about this at all). This is recorded on email.
2) I raised with my manager back in April that I feel the different geographical areas I manage are becoming an unrealistic work load for 1 person. I specifically stated I felt Inaffective in my role as I did not feel I could provide the focus and support to the contract and staff that it requires and suggested we hire an additional resource to support to avoid this. This was minuted and acknowledged, he agreed it wa becoming a lot of work, but still no additional support
3) I had also raised in April that due to some ongoing health problems I was struggling to sleep and focus and that day to day was becoming really difficult, this lasted throughout the summer. No support was offered. I was also in the first trimester of my pregnancy and was really finding it difficult to cope - although I did not inform work I was pregnant until July. But looking back I was a real a mess and with both health issues, shouldn't have probably been at work. I asked for support - and this is recorded, but nothing.

Is it really fair that now I am being held responsible for not knowing about this apparent fraudulent activity and doing anything about it?

Thanks in advance.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Did you fail to follow specific policies in this case?
Customer: No, there is no written policy other than for another manager to do a specific checking exercise before my administrator enters the info officially onto the system for claim. His job is to check and he's the one I've been saying to my manager hasn't been doing his job properly. He has now left the business in the last week.
Customer:

Just to add, we have to ensure segregation of duty so I have no choice but to rely on him to check - even though I had little faith in him doing it properly. If he had, I wouldn't have this problem now. But I seem to be the scapegoat for this now.

Ben Jones :

The issue in this situation is whether there was a specific policy you had failed to follow, whether there were specific instructions issued to you to address this, which you had also failed to follow, or if any reasonable person in your position should have been aware of what was going on and acted differently. The first two are easy to identify, the last can be rather subjective and will depend on what usual practices are in such situations and if your actions can be perceived as amounting to something like gross negligence.


 


The issue though, as highlighted in my previous advice to you, is that you are not protected against unfair dismissal due to your length of service. It does unfortunately mean the employer can dismiss, even on the reasons mentioned, without being able to challenge this by arguing the reason they relied on was unfair.

Customer:

Well as for the first 2 - the answer is no, nothing. The third, my counterpart on a different contract is exactly the same and can't cope with the work load. She wouldn't have been able to pick up on this either given the ridiculous work load and the fact that requests for support have been ignored. How can they not acknowledge that??

Ben Jones :

I agree, but the issue is still what you can and can't do about this - you simply cannot challenge the dismissal, the law does not allow you to do so at this stage because you do not meet the minimum requirements to do so. All you can challenge is any future reference by arguing it is misleading

Customer:

Sorry, what do you mean, I don't understand the last bit about challenging

Ben Jones :

well if you are dismissed because of this then you cannot challenge the dismissal and must accept the employer's decision to terminate your employment. However, if they provide you with a reference in the future and the talk about the reasons for your dismissal, then you can argue that the contents of the reference are misleading and that they should just stick to a factual reference, stating your periods of work and job title, nothing more

Customer:

Oh right I understand. ok, thank you for your advice. That's very helpful

Ben Jones :

You are welcome

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46155
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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