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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47341
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My daughter was on a scheme where she was supposed to receive

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My daughter was on a scheme where she was supposed to receive training in her first job which gave half her salary, the rest being made up by the government. She has just been sacked for alleged gross misconduct. She is an ecologist working at the time for an environmental consultant company and was doing an ornithological survey for a large energy company, a major customer of the consultant co. Her "misconduct" was that as she had her cello in the back of the van to practice in the evening and the energy company employees wanted to hear her play, she took it out and played it. She had finished her survey and the energy employees were finishing their work. She asked permission of the health and safety man present who gave permission, and later asked her to get the cello out and play it, so she did.
She was summoned before a panel of the consultants because the health and safety man had put in a complaint about this although he had asked her to play! This was seen as unprofessional by the consultants, and she was sacked immediately for "gross misconduct". This appears to me to be an unsuitable and unjust outcome. She was not warned or given a verbal reprimand although her line manager had complained about her for other perceived inadequacies. She tells me that he would complain from time to time that she had not done a job correctly but he had not briefed her adequately if at all as to the necessary requirements. She was given advance warning that she was to appear for discipline for the cello incident and gave her written account of the event. It was not obviously taken into account and she was told that she had the right of appeal but was being dismissed immediately. I think she should appeal in order to clear her name, so she doesn't have "gross misconduct" as a reference for future jobs. What would be the best plan of action, please?
Submitted: 3 years ago.
Category: 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. How long did she work there for?

Customer:

about seven months

Ben Jones :

Is all she wants to do remove the gross misconduct label?

Customer:

Yes; she does not want to return to the job, but it would be best if she officially retired voluntarily.

Ben Jones :

ok let me get my response ready please

Ben Jones :

Due to her relatively short length of service, she is not protected against unfair dismissal and as such cannot challenge the actual dismissal itself or challenge the fact she was dismissed. That is because until an employee has at least 2 years’ service they can be dismissed for more or less any reason and without there being a fair procedure in place. Any of the incidents mentioned could prompt the employer to dismiss, without there being any legal comeback for the employee.


 


However, it is possible to challenge the seriousness of the reasons used by arguing that this was not a gross misconduct offence and that this amounted to a breach of contract because as a result she was not paid the notice period she should have been paid. By arguing she was not paid her notice period due to being dismissed for gross misconduct she would be arguing breach of contract and seeking to reduce the ‘sentence’ from one of gross misconduct.


 


She can make an appeal directly with the employer but in the event that is rejected her only option is to take it to the employment tribunal. It will cost her unfortunately so she needs to consider whether it is worth it, or if it is just better to say she accepts the dismissal but not the reason and request that they only mention dismissal or termination of employment rather than the actual reasons or the fact it was deemed gross misconduct.

Customer:

Thanks, Ben. I wonder how to persuade the employer what is the definition of gross misconduct! My daughter is apprehensive about appearing before them in rather unfriendly conditions and not arguing her case adequately but I suppose it can't be helped. Do you think it likely that I would be allowed to accompany her (if I can get time off work)? I will have to wait for her to come back on Monday before I can find out what the required notice is for her job and where the contract is kept. Is it likely that they gave her this severe stigma in order to "justify" withholding a month's pay from her?

Ben Jones :

well the definition of GM is really something so serious that it justifies the immediate dismissal of an employee, it must go to the root of the contact and make the continued employment of the employee impossible. There is however ho formal definition or list of offences that qualify. You are not legally entitled to accompany her and that can only happen with the employer's permission. They could easily try and use the GM label to avoid paying her the notice period, they would not think about the stigma as much as saving the money. But they may not even mention this in the future, for example if they provide a reference - you may just try to agree with them not to include this and accept the rest of her position

Customer:

Yes..... the employer holds all the cards, doesn't he! If we are trying to get him to agree, is it best to even mention breach of contract, if we can't prove that cello playing is less serious than the understood range of GM? The balance is between compliance, yet not being a doormat, isn't it.

Ben Jones :

yes correct, you could mention breach of contract and play that card but to compromise you could say you would forget about the notice pay as long as the label of GM is removed...if that is of course acceptable to her

Customer:

Thanks a lot. I hope it works out; your advice has been most helpful. If I need more advice I know where to come.

Ben Jones :

you are most welcome, all the best

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