I worked for a company called Lift and engineering for 16/17 months. They have lost a contract and as a result I was TUPE'd to a new company called Wessex and started there 1/1/14. When I started at Lift and engineering I had a small mobility company and they asked me to stop it as it was a conflict of interest, I did stop and they said as long as it weren't Lift related I could carry on with my own thing. I started a Website 6 months ago selling adult toys my partner deals with any emails, I deal with phone calls. Wessex have found out about my website and rung me during their working hours pretending to be a customer. I should normally have a works phone but I did not have one supplied so had to use my own personal phone, normally it is switched off during works hours but I had to use it this time until my works one arrived. I went down their office for what I was told was an induction. I walked into their office he sat me down, showed me a print out of the website and said you have two choices, resign now or you can have a disciplinary the 5/1/14 and I tell you now you will be sacked. I have a union rep who is dealing with this side, but my question is, is it actually a breach of contract? I don't actually have a contract just a job offer and nothing in black in white saying this is not allowed. They haven't even had my personal file yet so I don't understand how it's breach of contract.
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What would you like to achieve?
I need to know if I have actually breached my contract if I am working for myself while working for a company. I don't actually have a contract with them, only a job offer which only states my pay and hours.
OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you
Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.
Whilst generally one would expect a breach of contract to be a breach of a written contract or a specific contractual term within it, it is also possible to be in breach of certain implied terms (these are terms that are not written down anywhere but are implied into every employment relationship). The most common implied term to be breached is that of trust and confidence, where for example an employee’s actions have broken the trust and confidence they are expected to honour with their employer.
In your case, there was no specific restriction on you not having another business at the same time as being employed by this company. So there is no breach of a written contract term. Next you must consider if this could have breached the implied term of trust and confidence, or have otherwise amounted to an act of gross misconduct.
For example, if you were using company resources or time to carry out your other business, then that could be misconduct. Just because you answered the phone during work hours is not such a serious offence that it should amount to gross misconduct and neither would having a business be, especially when there was no specific restriction on that.
The only other issue may be linked with you length of service, so just before I finalise y response can you please confirm exactly when you started with the old company please?
I started with the old company 17 months ago, unfortunately less than 2 years so I know employment law does not come into full effort. The disciplinary is definitely for breach of contract, not breach of trust. At no point any company resources have been used for my financial gain.
yes that is the main issue unfortunately - if you started with the old company after 6 April 2012 then it really does not matter whether this was for breach of contract, breach of trust, or whatever else they want to call it - they can dismiss you whatever the reason and you cannot challenge it unfortunately. So if they have told you that you will be dismissed anyway, you may wish to consider resigning so that at least on your record it goes as that, rather than a dismissal
If they hadn't of followed a correct disciplinary procedure what that matter or is it just a case of flogging a dead horse and accept my fate?
is there a contractual disciplinary procedure they should have followed?
yeah. they sat me down and said resign or be sacked. they tried forcing me down without my union rep present. luckily I got it delayed by five days, purely just so I can job hunt. union rep ain't happy with they dealt with it, but generally by the looks of it my fate is sealed.
well they would be expected to follow the contractual policy that applies to you - failure to do so will make them in breach of contract. However, it will not change anything in relation to the potential outcome and they can still sack you. It just means you will continue working there for that little bit longer whilst they go through with it the proper way. So the only thing you can get for their failure to follow it would be a bit of extra pay to cover the time you would have remained working for them whilst they follow the policy
ok, thanks for the advice.
you are most welcome, all the best