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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50191
Experience:  Qualified Employment Solicitor
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Or Ben Jones. My grandson Mike has been dismissed

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or Ben Jones. My grandson Mike has been dismissed for Gross Misconduct. He test drives ***** ****** ********. He works 7 nights @ 9 hours / 2 nights off/ 7 days @ 12 hrs / 5 days off. His wage slips do not record this. They are made to look like he works 45.5 hrs plus some overtime. I'm not sure why they do this? On 31st January he turned up for night shift and stated to his supervisor that he felt unwell due to a heavy cold. His supervisor refutes this. His vehicle movement is recorded.
They have stated that he was sacked due to:
Safety - You reported for work when you were unfit for work
Process - Contrary to Caterpillar Standard work procedure you fell asleep while at work
Process - Your signed Assignment details which state that you would work to and follow Caterpillar Standard work procedures has not been followed.
A) There is no medical evidence to back up the presumption he was unfit for work,
B) He admits falling asleep during his bait time plus 9 mins over.
C) I'm trying to get a copy of the Caterpillar Standard work procedure.
His engine was turned off at 8,42 while he took a break due to being tired. He had been advised that this was acceptable as a safety precaution. He then took his bait time from 9 am to 9. 20 which he admits to falling asleep. Obviously till 9.29
It is common for all collegues to sometime stop for a short nap if tired. There is more information in the minutes of his 2 investigation meetings and his disciplinary meeting but it all seems to hang on to those 9 mins that hey can prove he was asleep in works time. I feel that this was a ploy by his supervisor who he had reported on occasion with the request to be put on another shift due to his attitude when dealing with the staff. He had no warnings previously written or verbal. I feel that this is harsh result for what is not a life or death situation. He was not putting himself or his collegues in danger. He has not ben insubordinate and has only had 2 weeks off sick for an operation in nearly 3 years employment. What do you think? I have all the minutes of the interviews and disciplinary meeting.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. When was the dismissal and how long did he work there for exactly?
Customer: replied 2 years ago.
He was dismissed on 18th February 2016 , He had worked from April 2013
Thank you. Sleeping at work could indeed be a misconduct offence, however how serious it is and whether it amounts to gross misconduct will depend on the circumstances. In general, sleeping on duty means that the employee is neglecting their duties and it is grounds to discipline or even dismiss. However, the relevant factors which will assist him here are:· There was an accepted practice to take breaks and it would be even more helpful if it was known that they slept on such breaks· The time he was asleep for was rather short· The sleep was unintentional· He was not operating a vehicle at the time so any safety concerns would be minimal· This is the first time this has happened Circumstances when dismissal could be justified is if the employee had intentionally tried to avoid work and gone to sleep; or f he worked in a safety critical job and falling asleep exposed him or others to additional risks (e.g. train driver falling asleep whilst driving the train). So he can challenge this further by arguing the outcome is not one which a reasonable employer would have taken and he should have perhaps only been issued with a warning, even if it was a final written one. Now that he has been dismissed, apart from a direct appeal with the employer, all he can do is consider a claim in the employment tribunal. This is your basic legal position. I have more detailed advice for you in terms of some relevant case law and the procedure for taking the matter further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Sorry Ben I thought I would tip you at end of session?
Thank you. An interesting case you can refer to is this: As you can see the worker was dismissed there for deliberately going to hide away and sleep when they should have been working and that was deemed gross misconduct. The penultimate paragraph is quite relevant: “The employment tribunal held that it was reasonable for the employer to be "concerned about an employee who secreted himself away in order to sleep rather than to carry out the duties that he was contracted and paid to perform". The employer was entitled to believe that this was not a case of an employee accidentally "dropping off to sleep". Mr MacPherson had not informed his employer of his whereabouts, and there was evidence that he had slept during working time on earlier occasions. “ In terms of taking this further, he has 3 months from date of dismissal to submit a claim at tribunal. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 2 years ago.
Thank you Ben.... This does seem to help! He actually is reported as saying that he didn't mean to fall asleep.
I have mentioned the name of the Company can I get into bother for that???
I will remove it don't worry
Customer: replied 2 years ago.
Oh Thank you!!!! Can I come back to you on this subject if I need to?? I'm quite excited that maybe we can get the stigma of him being sacked for Gross misconduct wiped off.
Customer: replied 2 years ago.
I shall contact the company with the information I have. When I have checked all the details of the investigation meeting minutes and the disciplinary minutes...... Thank you sooo much!! I have had sleepless nights about this and now I have something to back me up.
Customer: replied 2 years ago.
Is that ok Ben?
Hi sorry I was just on my way out earlier. You are of course welcome to get back to me if needed, just start your new question in the same way as with this one by quoting my name. Thank you
Customer: replied 2 years ago.
Okey Dokey Ben ...... Thank You x
No problem, all the best