Gross Misconduct Advice Please

[belboid]

aye, which rather makes any further comment pointless, unless he's done it so badly he gets taken to tribunal (almost impossible in the circumstances)

 

[cesare]

aye, which rather makes any further comment pointless, unless he's done it so badly he gets taken to tribunal (almost impossible in the circumstances)

How much more badly can you get than sacking someone on the spot without a hearing and right of representation?

 

[lights.out.london]

How much more badly can you get than sacking someone on the spot without a hearing and right of representation?

as usual.

 

[belboid]

by doing it after they've been employed for a year!

 

[cesare]

by doing it after they've been employed for a year!

I personally think people should be treated fairly regardless of their lack of length of service. And, happily, there's no qualifying period for some claims.

 

[belboid]

well of course they should, but that's not the law..... I wouldn't have thought it likely (unfortunately) that the one year rule was inapplicable in this case

 

[cesare]

well of course they should, but that's not the law..... I wouldn't have thought it likely (unfortunately) that the one year rule was inapplicable in this case

I'm not talking about UD

I'm talking about breach of contract - no qualifying service required for a claim. If there was a breach.

 

[bouncer_the_dog]

Just put him at risk as part of a re-structuring exercise, and when re applies for his job don't give him an interview.

 

[belboid]

I'm not talking about UD

I'm talking about breach of contract - no qualifying service required for a claim. If there was a breach.

aah true, good thinking. It'd be a bugger to prove tho methinks

 

[cesare]

aah true, good thinking. It'd be a bugger to prove tho methinks

The contract that he signed for us has a list of things that are classed as gross misconduct, but says clearly at the end 'this list is by no means exhaustive'

Could be quite simple ...

 

[belboid]

oh, I thought you meant the sacked person could sue for breach

 

[cesare]

oh, I thought you meant the sacked person could sue for breach

Yes, if the disciplinary procedures are contractual they could. Or if there's any other breach. Proving it, with an express contractual terms, could be quite simple.

 

[belboid]

could be, if there isn't a counter-claim of prior breach by the claimant

 

[cesare]

could be, if there isn't a counter-claim of prior breach by the claimant

Yes. But if there are no restrictive covenants, what breach? And if there are restrictive covenants, if the employer has breached the terms of the contract by for example, failing to abide by contractual disciplinary procedures - they can't then selectively rely upon restrictive covenants, all of those fall away.

 

[belboid]

there'd be no need for restrictive covenants to come into play at all tho, causing deliberate harm to the business is normally listed somewhere as being instantly sackable

 

[cesare]

there'd be no need for restrictive covenants to come into play at all tho, causing deliberate harm to the business is normally listed somewhere as being instantly sackable

You can't bring a counter claim for breach of contract, unless you can point to the contractual breach. The whole point about restrictive covenants needing to be carefully drafted is because you can't rely on restraint of trade as being a fair/lawful implicit term.

 

[belboid]

but harm to the business, or bringing it into disrepute, isn't a restrictive covenant.

 

[cesare]

but harm to the business, or bringing it into disrepute, isn't a restrictive covenant.

Trying to stop someone going into competition with you (even if it's your own employee) is a restraint of trade. If you need to make sure that your employees don't do this, there need to be carefully drafted restrictive covenants that go no further than is legitimate to protect the business. Failure to have those means that you can't rely upon them as an implied contractual term and therefore any attempt to bring a counter claim on that basis is likely to fail.

 

[GoneCoastal]

Isn't this a clear breach of trust ?

Doesn't there have to be trust in an employment contract relationship even if it's implied ?

Would acting against your employer's interests as this appears to have been, not constitute breach of trust ? (Putting aside restrictive covenants for a moment)

 

[belboid]

but the employee taking action that he knows will harm the business is surely always a dismissable offence

 

[cesare]

but the employee taking action that he knows will harm the business is surely always a dismissable offence

Perhaps. But that's missing the point a bit. The employer could have dismissed him fairly and without breaking the terms of any contractual disciplinary/dismissal procedure (if it was contractual) in that case.

Just the guy's reaction, disbelief, seems on face value to indicate that it wasn't deliberate and certainly could have borne out further investigation, hearing his side of it etc. But there I go ... heading down the UD route ... which is integral to but not the basis of a breach of contract claim.

 

[cesare]

Isn't this a clear breach of trust ?

Doesn't there have to be trust in an employment contract relationship even if it's implied ?

Would acting against your employer's interests as this appears to have been, not constitute breach of trust ? (Putting aside restrictive covenants for a moment)

You're quite right that mutual trust and confidence underpin the employment contract. And someone could be dismissed for breaching that.

But if they were dismissed in such a way that the dismissal itself constituted a breach of contract, the employee can sue against that breach. They could also sue against any other breach e.g. failure to pay notice, holiday pay, benefits etc.

 

[GoneCoastal]

but the employee taking action that he knows will harm the business is surely always a dismissable offence

That's exactly what I mean by breach of trust...

Restrictive Covenants generally try and stop an employee doing something after they've left.. ie setting up in competition don't they ?

That's why my thoughts are along the lines that this is a breakdown in trust

 

[cesare]

That's exactly what I mean by breach of trust...

Restrictive Covenants generally try and stop an employee doing something after they've left.. ie setting up in competition don't they ?

That's why my thoughts are along the lines that this is a breakdown in trust

Restrictive covenants can apply during and post termination.

 

[GoneCoastal]

Perhaps. But that's missing the point a bit. The employer could have dismissed him fairly and without breaking the terms of any contractual disciplinary/dismissal procedure (if it was contractual) in that case.

Just the guy's reaction, disbelief, seems on face value to indicate that it wasn't deliberate and certainly could have borne out further investigation, hearing his side of it etc. But there I go ... heading down the UD route ... which is integral to but not the basis of a breach of contract claim.

Interesting.... I'd (personally) find it hard to claim it's not deliberate if I decided to take work away from my own employer though... I mean it's a bit hard to claim it was accidental somehow ?

e2a: There must have been tribunals on this basis already, *wonders what the outcomes were*

 

[cesare]

Interesting.... I'd (personally) find it hard to claim it's not deliberate if I decided to take work away from my own employer though... I mean it's a bit hard to claim it was accidental somehow ?

Of course. But some people don't always think things through. And in any event, he could still have ended up dismissed.

If (and it's a big if) there was a clear contractual breach by failure to follow the discip/dismissal procedure, the argument would be about the amount of damages sustained as a result of that breach.

 

[belboid]

aye, the act of unercutting your employers business, even if done accidebntally somehow, would mean that, altho the ex-employee could claim for damages, he'd get a very small amount as he was at least partly culpable. Frankly, I wouldn't have thought most people would think it worth the effort to sue

 

[GoneCoastal]

Of course. But some people don't always think things through. And in any event, he could still have ended up dismissed.

If (and it's a big if) there was a clear contractual breach by failure to follow the discip/dismissal procedure, the argument would be about the amount of damages sustained as a result of that breach.

I get what you're getting at .... ty...

I'm going to come back to this later - interesting -

 

[cesare]

aye, the act of unercutting your employers business, even if done accidebntally somehow, would mean that, altho the ex-employee could claim for damages, he'd get a very small amount as he was at least partly culpable. Frankly, I wouldn't have thought most people would think it worth the effort to sue

The thing is, contract claims aren't the same as UD claims in that respect. Reduction for contributory behaviour doesn't apply. It's just a matter of quantifying what the losses sustained are.

I've got an interesting one at the moment which has only been listed for an hour's hearing. Quite straightforward because you can either point to a clear contractual breach, or not.

 

[Idaho]

It was fair enough to sack him. Him, you, the care home, and everyone on this thread knows he was pulling a fast one. All that is left is whether there is a legal, or in the case of some, a politically sound basis for sacking him.