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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50161
Experience:  Qualified Solicitor
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I have just received an email yesterday (11.39am) to my work

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I have just received an email yesterday (11.39am) to my work email and my private email address and said that a letter is on it's way to me home address from my employer that they want me to attend a disciplinary hearing of:
'Allegation: Gross Misconduct - Specifically with regards to: ***** *****
'The matter is regarded as Gross Misconduct and may result in summary termination of your employment'.
All that is attached in regards ***** ***** attached that will be used - is a copy of a P & L showing my Division's results compared against a budget.
I am in charge of a cleaning division for a large multi service company and my results have not been that great in relation to a budget set last year.
I joined the company in June 2014 and have never received any warning letter - my notice period is 3 months from my side and 1 month from my employers side.
I have been working almost 7 days a week - in answering phone calls, emails etc and even had to go out at weekends to visit sites.
when I took over the division, my predecessor was terminated due to falsifying results in order to make the actual v budget meet - something I have never done, hence poor return results.
If I am going to be terminated - I would obviously like 3 months to find another job so should I just resign and not 1 month if they sack me
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. So what are the specific allegations, what is the negligence?
Customer: replied 2 years ago.
All it shows is a copy of a Profit & Loss results since October - against a budget agreed last August, where upon the division is loosing money
Customer: replied 2 years ago.
My MD has moaned at me previously about the poor results - but I have never received anything in writing etc - Letter attached - I still have not received the letter by post though
First impressions are that this is very vague, I have no idea from the letter what you are actually accused of so I doubt you have on either. From what you say this is likely about not hitting targets, is that right?
Customer: replied 2 years ago.
Yes - when I took over the division (last June), it had 14 Managers under me - to bring costs down it is now has 8 Manager under me - we work mainly providing Ad-hoc cleaning tasks, in my original budget I put in the cost for a Sales Manager, but again this has not materialised - so I am having to do quotes, visit sites, schedules, arranging any sub-contractors, working 7 days a week as weekends are full of phone calls, emails, visiting sites also. There has been a large number of redundancies due to the previous management numbers, which has also cost my division a lot of money.
My original P & L produced by myself was far less demanding than the current one, as I was told the Board of Directors wouldn't accept my original one due to the returns not being high enough.
It is a national role - and I drive around 3000 miles per month
Ok thanks. This appears to be a performance mater, not a misconduct one. I do not see how the employer can try and justify this as being a gross misconduct matter related to gross negligence. The initial issue is that with less than 2 years’ service you are not protected against unfair dismissal so you could be dismissed for more or less any reason. However, you are still protected against wrongful dismissal, which is dismissal in breach of contract. In your case that means you should still be given your contractual notice period unless you are genuinely dismissed for gross misconduct. As mentioned, I doubt the employer can justify gross misconduct here so you should be given your notice period, even if you cannot prevent a dismissal from taking place. If they do not, this would amount to wrongful dismissal, which you can challenge further if needed. This is your basic legal position. I have more detailed advice for you in terms of the options you have in pursuing this in the event they do not give you any notice, 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
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Customer: replied 2 years ago.
I imagine that they are just looking to get rid of me before my 2 years service - as I have already been told that they 'offered' the role to another person (one of our sub-contractors) - even though he apparently refused it.
Would I be best to resin now and give them my 3 months notice as it states in my contract from my side (better time for me to find another position) or wait until tomorrow and they just give me 1 months notice as it states this in my contract from their side - or less ?
Customer: replied 2 years ago.
On another note - I have not been well for a few weeks (not taking any time off though) - a lot of stress, this doesn't help receiving a letter either. I have a doctors appointment at 10.30am today.
Are they not supposed to give me also 3 days notice to attend a disciplinary hearing ?
What would happen if I went off sick following my doctor's advise
I would prefer to just resign and use the 3 months to find another job - less demanding, as I expect as they pay me £65k per annum, I am supposed to work every day
If you submit your notice first then you should be allowed to work through it, unless you are dismissed for gross misconduct in the meantime. So the employer could still try and do that but again it would likely be wrongful dismissal. There is no minimum notice period in law for a disciplinary and this is really a procedural issue which you cannot challenge until you have the 2 years. If you were to be signed off sick and not attend as a result, they could still try and hold the meeting in you absence and make a decision as again this is a procedural matter which is not challengeable within the first 2 years
Customer: replied 2 years ago.
Not wanting to use your opinion as my decision - but from the outset, what do you think would be best for me to do ?
I believe I can get another job in 3 months (and still be getting paid as normal), but the 1 months - I would struggle, plus would it not look better if I resigned, rather than terminated - from another potential employer ?
yes of course resignation would be better than dismissal so my opinion is to give your 3 months notice ASAP, be mindful that they may dismiss you in the meantime anyway, then try to pursue them for your 3 months' pay and still treat this as a resignation rather than dismissal as you would have likely been wrongfully dismissed so the dismissal should not stand in terms of reasons for the termination
Customer: replied 2 years ago.
As I have not even received the letter (posted yet) I may as well resign now - so in light of the letter previously attached, you are saying it is wrongfully dismissal based on performance - and not really Gross Misconduct ? Should I put that in the letter of resignation ?
The entire thing is making me stressed. But with the 3 months notice, would this then take me over my 2 years employment and they may deem this as an additional response in me then being 'employed' for over two years and me having more rights ?
it would be wrongful dismissal if you are dismissed with no notice period because this is a performance issue which is not gross misconduct so you should be given notice. Do not mention that in the letter, just resign as you would normally do it. They could allow you to work your 3 months but they could try and pay you in lieu of notice so just paying you the equivalent of your notice period and letting you go now, or as mentioned they could still try and dismiss for gross misconduct and you then have to pursue them yourself for the notice period
Customer: replied 2 years ago.
I will give it a shot - never been through any of this before so apologies for sounding quite vague - as the letter didn't actually state anything (as you know) just a copy of a P & L of poor results, which I know about anyway.
I did state last year, that I would need to re-build the entire division and start again with it.
Just wondering why they have stated Gross Misconduct - Gross Negligence really
No idea, I presume t is a way to try and get rid of you as soon as possible but they have provided no details so difficult to say at this stage but it does appear a performance issue
Customer: replied 2 years ago.
But it would be deemed as wrongful dismissal ? If they were to terminate me immediately ?
yes that is a dismissal in breach of contract, i.e. dismissal without giving you the notice period due
Customer: replied 2 years ago.
Even if they give me a months notice ? - is it still a wrongful dismissal based on performance only ?
No that would be unfair dismissal but you cannot claim that with less than 2 years service.
Customer: replied 2 years ago.
Do you think they will seem me wanting to get to this 2 year period if I resign with my contractual 3 months notice
They may allow you to work the 3 months but as mentioned they could still try and terminate the employment immediately by paying you in lieu of the notice period
Customer: replied 2 years ago.
Would the notice period be 3 months as I would have resigned