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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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I have just received invite to a disciplinary hearing with

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Hi. I have just received invite to a disciplinary hearing with gross misconduct. Im HR Advisor at the company and have a HR Assistant reporting to me. I have requested to be furloughed as I we were given the opportunity to put ourselves forward and because I have 3 school aged children I was struggling to cope. Hence I requested to be furloughrd which was agreed. Weeks into my f leave I was asked by a friend if I would help out at local care home as they are extremly short staffed due to the circumstances. I have agreed and started working within care home on nights. At this point we no longer had a childcare issue either as my husband has started working from home. We also got married last year and had some outstanding bills to pay to which I saw an opportunity to help us out and get rid of the debt with extra income. I mentioned to my assistant that I will be working in a care home and she might receive a reference request. I also asked her to keep it between us as our team is very bitchy and we have few members of the team who thrive on gossip. I didnt say that I am struggling with debt instead said I will save up for holiday next year. She then informed my manager of my extra work
JA: Have you discussed the disciplinary action with a manager or HR? Or with a lawyer?
Customer: i havent discussed it with anyone
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: my manager than called me when i was unwell as i contracted covid and on that call he started asking questions about my extra work and if i have asked my assistant to keep it quiet. i confirmed that i have been working and that i asked her but it was more of a friendly request not to share info rather than to dicieve the company
JA: Anything else you want the Lawyer to know before I connect you?
Customer: employed

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

How long have you worked there for?

Customer: replied 1 year ago.
since April last year
Customer: replied 1 year ago.
ok
Customer: replied 1 year ago.
Sorry got bit confused was awaiting a call, my phone didnt display message that call is not possible
Customer: replied 1 year ago.
Hello?

Thank you. What do you specifically want to know about this, please?

Customer: replied 1 year ago.
I am facing gross misconduct so any advice how to try to defend this would be appreciated
Customer: replied 1 year ago.
I have admitted my mistake although my manager didnt inform me of conducting and investigation over the phone, and as I was unwell at the time I didnt feel that was fair. I put my hand up and said I made a mistake but I feel that gross misconduct is little bit excessive. Although they are saying that I breached the contract by not informing them of working elsewhere whilst on furlough and also saying that I breached the trust by asking my assistant to not disclose information, however this wasnt done maliciously.
Customer: replied 1 year ago.
I didnt mean to deceive anyone just didnt want a gossip around the team as they are brutal for it.
Customer: replied 1 year ago.
what can i do or say to support the case
Customer: replied 1 year ago.
Hello, is anyone there please?

So there was a clause in your contract requiring you to advise the employer of this?

Customer: replied 1 year ago.
it isnt in my contract, but in my furlough letter and also in our handbook
Customer: replied 1 year ago.
11. Conclusion
11.1. Recommendation
11.1.1. Formal action by way of a disciplinary meeting
11.2. Further details on recommendation
11.2.1. Given the facts established in 9.1 & 9.2 (above) this may represent a case of gross misconduct under 13.5.6 of the company handbook being that they were “actions intended to defraud/deceive” and amounted to a “serious breach of trust or confidence”.
Customer: replied 1 year ago.
Hi, are you able to offer any advice please?

Thank you. It is important to know your general legal rights and the possible outcome. If you have been continuously employed at you place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you (unless you were dismissed for gross misconduct, where no notice would be due). If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they instead have to pay you in lieu of notice, where you are paid for the equivalent of the notice pay but your employment is terminated immediately.

So whatever you say or do, the employer will be able to dismiss you quite easily. Therefore, the best chance you have of avoiding that is to be as apologetic and remorseful as you can, explain your thought process at the time and hope they understand you were not acting maliciously, although the final decision is entirely up to them.

Does this answer your query?

Customer: replied 1 year ago.
I am aware of the limitations in my rights due to length of service and everything else you kindly pointed out. They also given me an option to tender my resignation which to me indicates that they have already made a decision to dismiss me and knowing the nature of the business and culture this is more or less done deal. Would you suggest to negotiate my notice period of 3 months as stated in my contract (they offered 1 month) instead of trying to go through the process?

You can certainly try but they may know that this will likely end up in gross misconduct and you would be due no notice, so the risk of holding out for 3 months is that you end up with none. There is no right or wrong answer as it all depends on the final outcome, which we cannot [predict (even if a specific one is likely).

Does this clarify things a bit more for you?

Customer: replied 1 year ago.
thank you.
Customer: replied 1 year ago.
considering the fact that I am furloughed and they have no overheads on my employment atm would you still think this would be too risky to aks for 3 months notice?

It may coast hem nothing but for them it could be a matter of principle, so the risk is still there (you could still ask though and say you are willing to do a month regardless)

Customer: replied 1 year ago.
thank you for your time.

All the best

Customer: replied 1 year ago.
thank you

Welcome

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