Unfair dismissal but employed under 2 years?

[Phunk]

My girlfriend who also works In the same company as me but in a differnt department was dismissed this morning for gross misconduct. She has been accused of overhearing her boss bhing about a member of staff in marketing (the area that I work in). Passing that information to me and I've then told this information to marketing staff.

Both myself and my girlfriend have no knowledge of this conversation taking place.

She was brought into a HR meeting this morning and instantly dismissed, they wouldn't give any details of what she has supposedly said. They also didn't mention anything regarding the appeal process.

This goes against their own proceedures and that of ACAS. However, she has only been with the company for 15 months so is unlikely to be able to claim unfair dismissal. However would the employer be In breach of contract with her?

I've not been spoken to at all regarding the matter and it seems to be very much a dislikes of my girlfriend from her boss.

[davepoth]

All IMO, and I'm not a lawyer. Talk to one before acting is the best advice I can give. Notwithstanding that:

How big is the company? Is there anybody much further up she could contact?

Get an appeal letter sent, just in case. Send it by recorded delivery. Ask for a copy of her HR file, and if they refuse, ask for it (and all of the information related to the disciplinary investigation) under the Data Protection Act (Might cost some money, will take a month, but they aren't legally allowed to refuse the request)

There are very limited grounds for an unfair dismissal claim before the two years (she's not a superannuated amputee black lesbian by any chance is she?) so as you suggest the wrongful dismissal due to breach of contract is probably the only way to go, arguing that the events didn't come anywhere near to gross misconduct which would justify a summary dismissal (assuming she's been fired without notice or pay in lieu of notice).

Here's a little bit on the sort of things you can claim for under wrongful dismissal. Again, I'm not a lawyer.

http://www.findlaw.co.uk/law/employment/wrongful_d...

I think she should be aiming for a compromise agreement. A result (again, IMO) for her would be the full payment of her notice (plus outstanding holiday pay) as well as an agreed reference that doesn't mention dismissal.

[Davel]

Not sure about your g/f's chances to be honest.

Are you at risk for passing the information on - or have I miss-read what you've written?

[Phunk]

Neither myself or my girlfriend have passed information on.

Information has been passed by someone, but they don't know who.

They assume it's us due to our relationship.

[megaphone]

Did she like/enjoy her job? Can she get another job elsewhere? Maybe she should just move along. Any action will likely cast a cloud over you and any future you have there.

[Davel]

Sorry, I did miss-read it.

[Phunk]

megaphone said:

Did she like/enjoy her job? Can she get another job elsewhere? Maybe she should just move along. Any action will likely cast a cloud over you and any future you have there.

She's happy to move on, however she is worried that having 'gross miscounduct' on her record will hamper her from getting a job elsewhere

[andy-xr]

Unless she's an ethnic minority or pregnant I dont think she'll get anywhere. Might be worth her calling them out under their appeals process and having an honest conversation, they dont want her to work there, but she'd like the option to resign and move on instead. It's no skin off their nose if that's what they want to call it, just get a reference. I'd be as ballsy as possible, from the position of where she is, there's not much to lose.

If that doesnt work, a bit of stretchy on past employment, a bit of volunteering and an open conversation with next employer along the lines of 'sometimes you make mistakes, I made a mistake working for them' and giving other references can be OK.

[Gargamel]

I love the way that rather than deal with the actual problem (the boss with the big mouth) they instead loss an employee who may or may not have done anything wrong.

Sounds like they were looking for an easy scape goat, or were in some other way unhappy with your partner, or looking to reduce costs.

I think your GF should set up a consultation with a proper employment lawyer, the first hour is often free and see if there is a legal remedy for this rather abrasive treatment.

It is worth trying to remove the Gross Misconduct allegation, as it may affect her in a future role/reference.

[Sir Fergie]

andy-xr said:

Unless she's an ethnic minority or pregnant I dont think she'll get anywhere. Might be worth her calling them out under their appeals process and having an honest conversation, they dont want her to work there, but she'd like the option to resign and move on instead. It's no skin off their nose if that's what they want to call it, just get a reference. I'd be as ballsy as possible, from the position of where she is, there's not much to lose.

If that doesnt work, a bit of stretchy on past employment, a bit of volunteering and an open conversation with next employer along the lines of 'sometimes you make mistakes, I made a mistake working for them' and giving other references can be OK.

You raise the point of how to address this going forward in terms of moving on.

Im not comfy with the whole "being sketchy" with past employment - it just potentially introduces new issues to the table if picked up on.

The question is however - what is the best way for OPs girlfriend to address whats happened when she goes looking for her next job - in terms of addressing her work history.

Sounds like something that she needs advice on - in terms of how best to explain it on her CV and at interview and in discussions with potential employers.

The one bit of good news - is that shes NOT the first to get the sack - so hopefully theres advice out there for her.

Im sure the argument can be made that "its her tough luck - she messed up and must deal with the consequences" - but in absence of the full story - such thinking ASSUMES employers are always reasonable which as we know isn't always the case

[Sir Bagalot]

OP, they haven't followed procedures, but less than 2 years service.

I would also get busy finding a new job as they don't sound a nice company to work for.

[MitchT]

Sounds like a case of 'orchestrated cost cutting' while it can still be done cheaply. That said, if someone has said something about her which isn't true, to her cost, then surely it's a case of defamation/slander/libel, the legalities of which shouldn't be prejudiced by her employment particulars.

[Fastchas]

Talk to an Employment Solicitor ASAP. Workers have rights, and I'm not saying that in some kind of fist-waving, socialist manner.
Strange no-one on here has mentioned the girlfriend may want to argue the case that it was not her and was not able to defend herself (if I'm correct).She may feel hard done by and want to scream out loud to them that it wasn't her.
A good solicitor will pick this up and run with it, I guess.

[andy-xr]

Fastchas said:

Talk to an Employment Solicitor ASAP. Workers have rights, and I'm not saying that in some kind of fist-waving, socialist manner.
Strange no-one on here has mentioned the girlfriend may want to argue the case that it was not her and was not able to defend herself (if I'm correct).She may feel hard done by and want to scream out loud to them that it wasn't her.
A good solicitor will pick this up and run with it, I guess.

You'd hope a good solicitor would argue that there was never actually a problem in the first place, and find a way to discredit it from being a judgement against continuing someone's employment. But the cost of doing it, vs the reward you'd get? Not worth it. Spend time getting things in a position where you're easier to employ would be my best advice. I'm not a solicitor.

[silverous]

There was a thread recently on here where a contractor was looking for work and his previous employer informed the new employer of his gross misconduct. If she's not guilty, aside from the principle of the matter, she ought to get it properly dealt with to avoid such issues.

[anonymous-user]

On the facts stated the dismissal was wrongful. This is a common law concept, whereas unfair dismissal is a statutory concept. A dismissal is wrongful when it is a breach of contract. Summary dismissal is a breach of contract absent gross misconduct. Procedure and reasonableness are irrelevant here. The only issue would be did the employee in fact commit gross misconduct.

The remedy is damages equivalent to the contractual notice period. That is probably a short period here, and so the claim is probably not worth much.

As for a claim alleging defamation by whomever misinformed the employer that X had said Y, such a claim would fail unless it could be shown that the informant acted with malice. This is because the allegation would attract what is known as qualified privilege.

Edited by anonymous-user on Wednesday 18th February 18:07

[Jasandjules]

Hmm, what is your position? It may be a potential (slim prospects but you never know) whistleblowing claim.. And to whom were you supposed to have reported, and roughly what?

Also, what investigations were undertaken by the employer? Was she asked to put her views etc

What has the employer got listed down as examples of gross misconduct in their policy? Gross Misconduct requires as a rule a serious matter which can constitute a fundamental breach of a term of the contract. I agree as above though it sounds like a fairly reasonable wrongful dismissal claim.

If you wish to keep this private in case her employer is reading this, email me.

[anonymous-user]

If I am reading what the OP says correctly, a whistle blowing claim would not be an option because his girlfriend denies making any statement about the manager, so this is not a case of someone making what could be described as a protected disclosure. The girlfriend says "not me, Guv".

[Jasandjules]

As I read it neither of them recall the conversation, that doesn't mean it didn't take place..... It has another dimension of course when it becomes who heard them say what, and to whom was he alleged to have referred the matter? Also the company has refused to tell them what it was alleged they said.........

[Koofler]

If they've taken action against your GF, then surely they would also take action against you for your supposed involvement. But they haven't, which is odd.
I'd go to HR and query that in the first instance and see what response you get.

Also, aside from the issue of less than 2 years service, can they actually dismiss someone instantly for this? Yes, she can be let go at any time with notice up to 2 years in, but disciplinary procedures have very set rules from my experience.

Have they put anything in writing to her?

Edited by Koofler on Friday 20th February 14:11