#Employment : Sacked for Gross Misconduct - failing to follow procedures- but offered reference and compensation

[SF2010]

Hi All

 

I would like to get your opinion on this case. It relates to a neighbour, but I am supporting them. I already work in this field, but in another company, so have been offering him some support.

 

Employed less than 12 months (so aware of no right to tribunal, but wait!)

 

Had keys to safe and passed them over to 2 colleagues without doing key check/handover due to extensively long shift and rushing after a meeting.

 

Relatively small amount of money went missing from safe.

 

Made aware immediately and no investigations took place.

 

Over 2 weeks later, he was the only person suspended.

 

Had discilpine hearing and was sacked for failing to follow procedures.

 

Appealed against decision - on the basis that the advice throughout from employer was this had nothing to do with loss of money, but entirely on non compliance with handover key procedures. In many examples of others compliance and conduct of a similiar and much worse nature, they were not sacked, just given a warning. Appeal turned down

 

Wrote letter to MD advising that the decision was not equal to those made in similar or worse cases, but as he was less than 12 months this decision was made. Previous extensive experience of working with 10-50 times the amounts in the business. No investigation of the loss had taken place. Also, he would have a bad reference to match this, so this would ruin his career.

 

MD agreed to see him where he put his case of discrimination. Advised that his direct manager has disliked people from his background and was determined to get him out of the company. There is a rift between the cultures involved, that most of us would not know or even think about. He feels this is the reason why there was no investigation of the loss, no-one else was suspended and he was sacked instead of given a warning (bearing in mind that he was repeatedly told all along this had nothing to do with the loss of money as some sort of justification for not investigating the loss, but disciplining him. I have seen this in writing myself).

 

After the hearing with the MD he was offered £2,000 and a reference which more or less just stated his duties. They said non negotiable.

 

He went back and asked for £5,000 and a reason for leaving as resigned stated on the reference and something adding in relation to how he conducted those duties. It would be unreasonable to believe that these questions would not be asked by an potential employer.

 

He has received another letter refusing to say he resigned, but have said he was good at his duties and committed to his work. They are not offering any other alternative to the reason for leaving and given the same compensation offered as before. I think the fact that the concession has been made suggests that he has a good case, but I also feel he may be better off moving on with his life as these things can take over your whole existence. Again they say its non negotiable. I am aware that his letter to the MD could have been ignored.

 

He must reply next week. Now, what should he do about the reason for leaving? They have not offered any advice about what they will say! I really dont think it is wise to accept these terms without knowing what they will say about leaving. I have suggested a solicitor to make a phone call to clear this up a bit more quickly for him (solicitor to solicitor if needs be), but does anyone else have a view?

Edited April 8, 2011 by SF2010

[elpulpo]

Hi All

 

I would like to get your opinion on this case. It relates to a neighbour, but I am supporting them. I already work in this field, but in another company, so have been offering him some support.

 

Employed less than 12 months (so aware of no right to tribunal, but wait!)

 

Had keys to safe and passed them over to 2 colleagues without doing key check/handover due to extensively long shift and rushing after a meeting.

 

Relatively small amount of money went missing from safe.

 

Made aware immediately and no investigations took place.

 

Over 2 weeks later, he was the only person suspended.

 

Had discilpine hearing and was sacked for failing to follow procedures.

 

Appealed against decision - on the basis that the advice throughout from employer was this had nothing to do with loss of money, but entirely on non compliance with handover key procedures. In many examples of others compliance and conduct of a similiar and much worse nature, they were not sacked, just given a warning. Appeal turned down

 

Wrote letter to MD advising that the decision was not equal to those made in similar or worse cases, but as he was less than 12 months this decision was made. Previous extensive experience of working with 10-50 times the amounts in the business. No investigation of the loss had taken place. Also, he would have a bad reference to match this, so this would ruin his career.

 

MD agreed to see him where he put his case of discrimination.

Discrimination on what grounds? Advised that his direct manager has disliked people from his background and was determined to get him out of the company. There is a rift between the cultures involved, that most of us would not know or even think about. He feels this is the reason why there was no investigation of the loss, no-one else was suspended and he was sacked instead of given a warning (bearing in mind that he was repeatedly told all along this had nothing to do with the loss of money as some sort of justification for not investigating the loss, but disciplining him. I have seen this in writing myself). What evidence is this?

 

After the hearing with the MD he was offered £2,000 and a reference which more or less just stated his duties. They said non negotiable.

 

He went back and asked for £5,000 and a reason for leaving as resigned stated on the reference and something adding in relation to how he conducted those duties. It would be unreasonable to believe that these questions would not be asked by an potential employer.

 

He has received another letter refusing to say he resigned, but have said he was good at his duties and committed to his work. They are not offering any other alternative to the reason for leaving and given the same compensation offered as before. I think the fact that the concession has been made suggests that he has a good case,

A case for what? Unlawful Discrimination? Unfair dismissal?

but I also feel he may be better off moving on with his life as these things can take over your whole existence. Again they say its non negotiable. I am aware that his letter to the MD could have been ignored.

 

He must reply next week. Now, what should he do about the reason for leaving? They have not offered any advice about what they will say! I really dont think it is wise to accept these terms without knowing what they will say about leaving. I have suggested a solicitor to make a phone call to clear this up a bit more quickly for him (solicitor to solicitor if needs be), but does anyone else have a view?

I don't understand on what grounds you think you have a legal case, you haven't made it clear.

It strikes me that £any + a standard reference is more than reasonable. Inexplicably generous even, as the employer is arguably misleading potential employers and leaving themselves open to liability. Unless I'm missing something..?

[SF2010]

If you do think its generous then I accept your opinion, I too think its generous, however what will be advised as the reason for leaving? The evidence is their own written advice which states that the grounds for discipline are for 'not following procedures and does not relate to loss of money in anyway'. Im not a solicitor so appreciate your view.

[SF2010]

And youre right its inexplicable, why would they do that without a case to answer?

[honeybee13]

Hello there, welcome to the forum.

 

I too am mystified by a spontaneous offer of money, but then there is an attempt to move things along very fast. Why are they doing this?

 

I hope more caggers will comment on this, but why are the company trying to force the issue?

 

My best, HB

[SF2010]

Thanks HB

 

If anyone could suggest a term that may be mutually agreeable this would be helpful!

[SF2010]

I don't understand on what grounds you think you have a legal case, you haven't made it clear.

It strikes me that £any + a standard reference is more than reasonable. Inexplicably generous even, as the employer is arguably misleading potential employers and leaving themselves open to liability. Unless I'm missing something..?

 

Thanks, I do agree with you, but he does feel strongly about being discriminated against and the offer does suggest there is something not quite right.

[honeybee13]

Thanks HB

 

If anyone could suggest a term that may be mutually agreeable this would be helpful!

 

Hello again. I'm sorry to be pedantic, but I'm not sure if we're at the stage of suggesting mutually agreeable terms. Do you have supplementary questions please?

 

This all sounds very strange, but has your neighbour seen a solicitor?

 

If it is thought that discrimination is an issue, then someone should speak to the EHRC helpline. I believe they're good.

 

I fear that we don't have sufficient information here or possibly the expertise to advise on a complex issue. As a seasoned cagger, you will be aware that this is a voluntary forum and that the advice you receive is dependent on who is around on the forum at the time.

 

My best, HB

[elpulpo]

If you do think its generous then I accept your opinion, I too think its generous, however what will be advised as the reason for leaving? The evidence is their own written advice which states that the grounds for discipline are for 'not following procedures and does not relate to loss of money in anyway'. Im not a solicitor so appreciate your view.

If you can negotiate a reference, then fine. But I can't see that the ball's in your side of the court at all.

The employer must be factual when giving the reference, but that doesn't mean they have to say anything, they can just say, "X worked here from yy/yy/yyyy until zz/zz/zzzz, he was employed as a Lar-de-dah". Full stop.

[elpulpo]

And youre right its inexplicable, why would they do that without a case to answer?

I don't know. Maybe they're incompetant. Maybe they think there's some aspect of unlawful discrimination that would give grounds for an application to ET.

Is there?

[elpulpo]

Thanks, I do agree with you, but he does feel strongly about being discriminated against and the offer does suggest there is something not quite right.

On what grounds?

[honeybee13]

Is there a union involved here please?

 

My best, HB

[honeybee13]

PS. We had a poster on the forum not too long ago who thought that their employer was going to offer them a blank cheque for injury to feelings, discrimination etc. From memory, I don't think anyone here thought they were entitled to any money.

 

I'm not saying that this is the case with the person you know, but it makes me feel sceptical.

 

My best, HB

[SF2010]

Thanks both

 

I do feel this is very unstable on his part and I know how difficult it is to prove discrimination despite his feelings on the matter. I will advise him to accept as my own thought is not related to the money on offer, it his future career that he should be most concerned about. Elpulpo I take it that they would not necessarily state he was dismissed for gross misonduct, but they could. Or is the offer of a standard reference taken as read they would choose not to state that. Im only trying to understand what he may be agreeing to.

 

The Union was involved, but he is no longer able to pay the fees and so has no membership. (Silly I know!) I dont think I can help him further as it is complex and Im not a solicitor. But thank you for your opinion all the same.

[elpulpo]

What discrimination? What grounds?

Nothing you've said alludes to any form of unlawful discrimination.

So I'd advise him to take any settlement and reference he can get.