Gross misconduct?
Discussion
Quick question, and I appreciate it's a bit light on detail, but would the following be classed as gross misconduct?
Making an obviously inflammatory comment in front of the owner of the biggest client for a company
Then walking off site, and ignoring all attempts at contact
Then calling the police and making an accusation of assault against the same chap he made the comment to
Then refusing to discuss the issue with a director of the company, who also happens to be his direct line manager?
Obviously the latter isn't a problem assuming it did happen, but let's just say that there was no assault at all and just an exchanging of loud words (I understand the legal definition of assault, and we'll assume that there was no threatening language used either). Call it a false accusation, if you were, as police have attended and were not interested.
Making an obviously inflammatory comment in front of the owner of the biggest client for a company
Then walking off site, and ignoring all attempts at contact
Then calling the police and making an accusation of assault against the same chap he made the comment to
Then refusing to discuss the issue with a director of the company, who also happens to be his direct line manager?
Obviously the latter isn't a problem assuming it did happen, but let's just say that there was no assault at all and just an exchanging of loud words (I understand the legal definition of assault, and we'll assume that there was no threatening language used either). Call it a false accusation, if you were, as police have attended and were not interested.
This may help as it largely depends on the contract:
2. What counts as gross misconduct?
It is strongly advisable to give employees a clear indication of the type of behaviour you consider to be gross misconduct. You can do so in the contract of employment itself or in a staff handbook. Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant. Most employers would identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as examples of gross misconduct.
You might want to specify other offences, depending on the nature of your business: for example, accepting or offering bribes, downloading pornography, downloading software from the internet or using personal software (to protect the business against legal risks, and the risk of importing viruses), misusing confidential information or setting up a competing business. If you have policies covering all or any of these activities, you can specify breaches of all or some of them (or of particular activities specified in them) as gross misconduct.
Other lesser offences, often relating to work and work performance - for example poor timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence or sub-standard work - do not usually amount to gross misconduct. However, you may want to specify that repeated minor misconduct (for example, persistent poor timekeeping) can, cumulatively, amount to a more serious offence.
In view of the fact that smoking in enclosed (or substantially enclosed) areas is illegal, you should identify the steps you will take if employees flout the law (and that you would like them to take if customers or other visitors do likewise).
It is wise to say that the list is not intended to be exhaustive.
Caution should be exercised when dealing with an employee under the influence of alcohol or drugs. If the employee is an alcoholic or drug addict then this should be dealt with as a capability issue and not as gross misconduct in the first instance.
2. What counts as gross misconduct?
It is strongly advisable to give employees a clear indication of the type of behaviour you consider to be gross misconduct. You can do so in the contract of employment itself or in a staff handbook. Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant. Most employers would identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination as examples of gross misconduct.
You might want to specify other offences, depending on the nature of your business: for example, accepting or offering bribes, downloading pornography, downloading software from the internet or using personal software (to protect the business against legal risks, and the risk of importing viruses), misusing confidential information or setting up a competing business. If you have policies covering all or any of these activities, you can specify breaches of all or some of them (or of particular activities specified in them) as gross misconduct.
Other lesser offences, often relating to work and work performance - for example poor timekeeping, absenteeism, use of workplace facilities, personal appearance, negligence or sub-standard work - do not usually amount to gross misconduct. However, you may want to specify that repeated minor misconduct (for example, persistent poor timekeeping) can, cumulatively, amount to a more serious offence.
In view of the fact that smoking in enclosed (or substantially enclosed) areas is illegal, you should identify the steps you will take if employees flout the law (and that you would like them to take if customers or other visitors do likewise).
It is wise to say that the list is not intended to be exhaustive.
Caution should be exercised when dealing with an employee under the influence of alcohol or drugs. If the employee is an alcoholic or drug addict then this should be dealt with as a capability issue and not as gross misconduct in the first instance.
To be safe, always hold an investigation having written to the chap and invited him to a meeting, the letter inviting him stating that the possible outcome of the meeting is the termination of his employment. Follow a fair procedure, you are less likely to risk an ET.
Oh, and I assume the business has some insurance which will enable you to take insured legal advice... Suggest you get written advice to follow.
Oh, and I assume the business has some insurance which will enable you to take insured legal advice... Suggest you get written advice to follow.
Edited by Jasandjules on Friday 17th May 19:20
That I don't know, I will have to check. Proper advice would seem to be a good idea anyway I think, not that I have a clue where to start looking, probably just find someone local and go from there.
The employee in question is also refusing to speak to me any further, which is making life interesting.
The employee in question is also refusing to speak to me any further, which is making life interesting.
There's three directors, I'm one of them and the senior one whilst one is on holiday. Never had to deal with anything like this before, what makes it more awkward is that the guy is a mate and we're only a tiny (7 of us) company, so very much unknown territory.
Our client has already said that the guy in question is now banned from their sites, which means he can't do about 75% of the work expected of him now, really couldn't have made this situation more difficult if he'd tried! I really want to help him out, but he's not making it easy.
Didn't know ACAS had a free helpline, will definitely give them a call Monday, thanks.
Our client has already said that the guy in question is now banned from their sites, which means he can't do about 75% of the work expected of him now, really couldn't have made this situation more difficult if he'd tried! I really want to help him out, but he's not making it easy.
Didn't know ACAS had a free helpline, will definitely give them a call Monday, thanks.
Ekona said:
Kinda related too, but is there any statute of limitations for assault? The incident happened about 6 years ago at a guess, and this was proper fist to the face assault that time.
Personal injury is 3 years for civil claims, if I remember rightly.If it was a summary only criminal offence, information must be laid in the magistrates court no later than 6 months after the alleged offence took place. No specific time limit if it's indictable, though long delays may lead to applications under abuse of process.
Ekona said:
Kinda related too, but is there any statute of limitations for assault? The incident happened about 6 years ago at a guess, and this was proper fist to the face assault that time.
So am i right in thinking employee and client got involved in fisticuffs an age ago, and then bumped into each other randomly at work this week, and it all kicked off again?Ekona said:
Didn't know ACAS had a free helpline, will definitely give them a call Monday, thanks.
There advice isn't always comprehensive - I.e. not a replacement for full legal advice, but they are often good at giving some high level guidance, providing you treat it as guidance and not a solicitor replacement.... (Which some people do)@10PS: Probably out of time then, the injury involved probably wouldn't warrant anything more than a caution I think.
@Grenoble: Noted, ta.
Magog said:
So am i right in thinking employee and client got involved in fisticuffs an age ago, and then bumped into each other randomly at work this week, and it all kicked off again?
Oh, if only. Same employee, completely different person who got the thwack.@Grenoble: Noted, ta.
Mastodon2 said:
You didn't think to sack an employee when he assaulted someone?
Likewise. The door is thataway----> would be the immediate response first time round. There would be no second time around.A guy working for my dad was caught red handed trying to nick a lappy from a customers site. My Dad went straight round sacked him on the spot and made good with the customer.
There is no f
king around with this stuff as the company will get a reputation.Ekona said:
Oh, if only. Same employee, completely different person who got the thwack.
@Grenoble: Noted, ta.
Ok, @Grenoble: Noted, ta.
That would have been an act which permitted you to immediately terminate his employment for Gross Misconduct.
Please hold a meeting (take advice from ACAS or whomever as to how to do this including sending a letter etc beforehand and providing the evidence you have, any witness statements and so on so he can prepare whatever defence he might have). After that you can decide what to do.......... And send a letter to him stating what you have done and why.
Mastodon2 said:
You didn't think to sack an employee when he assaulted someone?
It was me he punched. Very hard to explain the situation, but at the time it was a one-off and I didn't have the confidence nor feel the need to take it much further. It stayed between me, the guy in question, and two other chaps. The top director (who is also my Dad, family business) doesn't know this ever happened.Looking back it was the start of a slippery slope, but at the time moving on as two mates seemed a good idea. I was much more naive then, I admit that much. Six years is a long time ago, and I've grown up a lot since then.
Jimmyarm said:
Ask yourself this;
Do you value the employee ?
I did. Now, not at all. Seeing as how I gave him the benefit of the doubt of a small red mist following the above incident years ago, and his current attitude yesterday, I'm not sure the relationship (either friend or business) is remotely salvageable. Tbh, I suspect he may jump before being pushed, but with him banned from our biggest clients' sites and still pursuing this completely baseless assault charge, I can't see that we can afford to keep someone on who is not able to perform the work for us.Do you value the employee ?
Jasandjules said:
Ok,
That would have been an act which permitted you to immediately terminate his employment for Gross Misconduct.
Please hold a meeting (take advice from ACAS or whomever as to how to do this including sending a letter etc beforehand and providing the evidence you have, any witness statements and so on so he can prepare whatever defence he might have). After that you can decide what to do.......... And send a letter to him stating what you have done and why.
Will do, thanks. Given that he's due back in work Monday (whether he turns up or not is a different story), do I let him come in as normal? Or say he's suspended on full pay while we investigate and arrange the meeting from there?That would have been an act which permitted you to immediately terminate his employment for Gross Misconduct.
Please hold a meeting (take advice from ACAS or whomever as to how to do this including sending a letter etc beforehand and providing the evidence you have, any witness statements and so on so he can prepare whatever defence he might have). After that you can decide what to do.......... And send a letter to him stating what you have done and why.
Ekona said:
Will do, thanks. Given that he's due back in work Monday (whether he turns up or not is a different story), do I let him come in as normal? Or say he's suspended on full pay while we investigate and arrange the meeting from there?
That's what I would do the guy is damaging your business, keep him off the premisesEkona said:
It was me he punched. Very hard to explain the situation, but at the time it was a one-off and I didn't have the confidence nor feel the need to take it much further. It stayed between me, the guy in question, and two other chaps. The top director (who is also my Dad, family business) doesn't know this ever happened.
Unless the guy walks of his own volition your father is probably going to find out, so it might be a good idea to let him know now rather than it coming as a surprise. If external advice is to be sought whoever is approached also needs to know about it.Agreed.
Just had an email from the guy now, he's not coming into work tomorrow as he's going to see his doctor because all this has shaken him up, and wants a one to one with my father when him and my mum return from holiday this Friday. Having read the email (it wasn't sent to me), his problem appears to be with how I'm running the business in the absence of my father. I suspect that's the real issue here.
Just had an email from the guy now, he's not coming into work tomorrow as he's going to see his doctor because all this has shaken him up, and wants a one to one with my father when him and my mum return from holiday this Friday. Having read the email (it wasn't sent to me), his problem appears to be with how I'm running the business in the absence of my father. I suspect that's the real issue here.
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