Another Employment Question

[Martin clk]

I know that I'm going to get told to get proper legal advice, however, I'm keen to know what folks thoughts are.

I was suspended from work yesterday. I made a call to a competitor a few weeks ago posing as press and enquiring about redundancies. Whilst I appreciate this may sound a strange thing to do, is is quite the norm in my industry (recruitment) to make calls to gain information on market etc.

They've told me this is gross misconduct. Personally I think this is just an easy way to get rid of me in very hard times.

What annoys me the most is that my father is in hospital at the moment and they know that I'm seriously stressed about this and the current state of play with the climate. They are also aware that I am on medication for depression.

My employer has been causing real stress at work recently, verging on bully tactics. A colleague was told his request for holidays would be based on performance ans ultimately be his decision if he went ahead and took them.

So my question is - Have I committed gross misconduct (nothing in my contract refers to this)? What would you do?

 

[butty871]

keep going to the meeting you can get paid for months for doing no work

 

[Martin clk]

The meeting will be next week. I'm going to get signed off for stress on Monday which will buy me a week but I only have 8 sick days a year on pay. I cant afford to be signed off for anymore.

They will probably get me out very quickly, obviously I will appeal which may result in a compromise agreement as we're part of a group that is owned by a well known individual and they wont want any negative publicity.

 

[st4]

Hi Martin,

How did your employer ascertain that you called another competitor? You didn't use the work phone, I've done this off a personal mobile/home line etc on a withheld number.

Gross misconduct alas can result in dismissal but they'll probably not go down this route as for fearing for tribunals etc. Worst case is that you'll receive a settlement etc. I wouldn't consider this until your boss gets back to you, have you been invited to attend a disciplinary hearing or anything like that.

I have never worked in recruitment (but deal with agencies as they find me work) but would guess that if you have good contacts within businesses they wouldn't want to lose you, unless that business is drying up. Then its redundancy time and that will depend on how long you've been there.

 

[crockers]

You hit the nail on the head in your first post............seek legal advise ...employment law is a minefield and I am sure you can get some good advise - usually the first meeting is free...

Good luck

 

[Martin clk]

Hi Martin,

How did your employer ascertain that you called another competitor? You didn't use the work phone, I've done this off a personal mobile/home line etc on a withheld number.

Gross misconduct alas can result in dismissal but they'll probably not go down this route as for fearing for tribunals etc. Worst case is that you'll receive a settlement etc. I wouldn't consider this until your boss gets back to you, have you been invited to attend a disciplinary hearing or anything like that.

I have never worked in recruitment (but deal with agencies as they find me work) but would guess that if you have good contacts within businesses they wouldn't want to lose you, unless that business is drying up. Then its redundancy time and that will depend on how long you've been there.

I'm a bit of a practical joker and a colleague was laughing about it in the office, a manager who has a problem with me decided to act on it.

I'm hoping for a compromise to be honest. I've actually been looking elsewhere and hopeful of securing a new role in the next month with a business that I've been talking to.

I'm just angry that they're making an example of me it seems and making a mountain out of a molehill. Probably scare tactics again which wouldnt surprise me.

 

[Sp!ke]

So its purely heresay evidence they are basing this on?

 

[recycled]

well you can always deny it and tell the manager to prove you did it.

 

[Martin clk]

Unfortunately not - I admitted to making the call. Prefer to be honest about it. I dont see it as doing something wrong - salesperson initiative maybe !

It wasmade on my mobile though and not the business phone - dont know if that makes any difference?

 

[st13phil]

Crockers' advice is very sound: take qualified legal advice on your own situation.

You mentioned that you are suffering severe stress at the moment due partially to family matters, but also due to pressure being applied by your employer. If I were you, I'd make mention of this when you seek legal advice as your employer owes you a duty of care regarding your mental health as well as your physical wellbeing. It's a brave employer that would dismiss someone who is genuinely suffering from stress that they have (even partially) caused...

 

[st4]

Unfortunately not - I admitted to making the call. Prefer to be honest about it. I dont see it as doing something wrong - salesperson initiative maybe !

It wasmade on my mobile though and not the business phone - dont know if that makes any difference?

It does because you should deny it and make them prove the allegation, you should have told the boss you said you made the call as a joke to wind him up. He'll look silly in that meeting.

 

[Dieselman]

There's some good advice in this thread as long as you ignore posts 2,3,4,6,10,11.

You've acted dishonestly impersonating another party and phoned a competitor to ask underhand questions, this brings the Company into disrepute so almost certainly is GM.
You've admitted to it to more than one person, so anything you say contradicting that now would mean you are either lying or already had.
The employer doesnt have to prove you did this, they just need reasonable doubt, which you have already provided.
In addition you don't, and won't, know what other evidence they may have.

Your best hope is that they foul up on procedure, but so far they appear to be doing it by the book.

Expect a letter inviting you for an investigative hearing and allowing a witness of your choice in accordance with your disceplinary rules. There has to be two clear days between that being sent and the hearing.
After that you will be left on susp and the person investigating will present their evidence to their Superior and HR for review. As in life the Policeman can't be the Judge.
Once a decision is made you will be invited back for the result, again in writing with two clear days.

Your company procedures manual should have your appeals procedure should you wish to appeal.

From your description, if they have reasonable evidence/doubt and they follow procedure I wouldn't expect you to be successful with an award and persuance at tribunal probably wouldn't be wise unless they mess up on procedure.

Going sick is unlikely to alter events, but it means the hearing is delayed until your return to work. I assume the employer has the right to withold sick payment at their discretion, so don't expect sick pay (other than stat).

I'm not sure what personal stress has to do with a deliberate act, but you might try that as mitigating circumstances.
If you'd failed to turn in or not been able to perform or had an out of character disturbance at work, then stress would be a reasonable defence, but a deliberate act is different.

I also can't see them wanting to pay out to keep this quiet as it could only put them in a good light. It shows they don't tolerate people being underhand.

Of course this is only my opinion from a bloke on 'tinternet..and my employment law procedure might be a bit rusty as I've not had to dismiss anyone for ....well a few months...


Sorry if that's not what you want to hear...

Get proper advice from an Employment Consultant, they tend to know more than Solicitors and don't play for their own safety as much.

 

[st13phil]

There's some good advice in this thread as long as you ignore posts 2,3,4,6,10,11.

Why?

I suggested the OP sought qualified advice. I also pointed out that stress in the workplace is a minefield for employers going through a dismissal process. I didn't say that it can't be done, I simply pointed out that many will treat allegations of having caused unnecessary stress and having failed to take adequate steps to manage the situation with great trepidation. What's incorrect in that?

(BTW, I tend to agree with you that the OP's actions could well constitute GM)

 

[timskemp]

Unfortunately not - I admitted to making the call. Prefer to be honest about it. I dont see it as doing something wrong - salesperson initiative maybe !

It wasmade on my mobile though and not the business phone - dont know if that makes any difference?

Without wanting to sound judgemental, it's a bit late to "prefer to be honest" after pretending to be someone else on a phone call.

You need proper employment advice, if this really is common practice in what you do.

 

[Dieselman]

Why?

Ah, sorry, it was just the bit about the stress and duty of care.
They don't have to retain an individual because they are having a tough personal life, although in certain circumstances it may be considered, as I mentioned, but it doesn't appear applicable to this case.

I actually missed posts 7 and 8 off the list...

 

[Dryce]

I
I'm just angry that they're making an example of me it seems and making a mountain out of a molehill. Probably scare tactics again which wouldnt surprise me.

In the current economic situation I'm quite sure there are employers who will use a Gross Misconduct approach to something that might have previously resulted in a verbal or written warning.

If they've picked up that you're going or just plain don't like you this is an easy route and avoids the complications of redundancy.

I'm a bit of a cynic about stress because in the sector I work in it always seems to be the least stressed people who need time off for stress.

However. You might build a case to use this in mitigation. The call was to a competitor and not a client or supplier.

As regards the level of misconduct in this - things obviously vary from organisation to organisation. But I can think of a lot worse that people can do in their job. I would deal with it with a written warning and therefore if it was a first offence it would not result in dismissal.

 

[Martin clk]

Without wanting to sound judgemental, it's a bit late to "prefer to be honest" after pretending to be someone else on a phone call.

You need proper employment advice, if this really is common practice in what you do.

I meant, prefer to take it on the chin than try to cover it up.

In recruitment, we always call competitors to try to find out who their jobs are with and vice versa. Headhunting calls are made under an alias.

 

[Martin clk]

You've acted dishonestly impersonating another party and phoned a competitor to ask underhand questions, this brings the Company into disrepute so almost certainly is GM.

I still don't accept, and wont, that it's GM. It was a made up name from my mobile phone to ask about redundancies. It hasnt brought the company into any disrepute and it dont believe it will as they will want it kept internal.

I do accept that I'm unlikely to want to like what you've written though. I just think it's pretty harsh to be sacked for this offence which is the first blemish on a 2 year employ.

 

[HowardD]

I know that I'm going to get told to get proper legal advice, however, I'm keen to know what folks thoughts are.

I was suspended from work yesterday. I made a call to a competitor a few weeks ago posing as press and enquiring about redundancies. Whilst I appreciate this may sound a strange thing to do, is is quite the norm in my industry (recruitment) to make calls to gain information on market etc.

They've told me this is gross misconduct. Personally I think this is just an easy way to get rid of me in very hard times.

What annoys me the most is that my father is in hospital at the moment and they know that I'm seriously stressed about this and the current state of play with the climate. They are also aware that I am on medication for depression.

My employer has been causing real stress at work recently, verging on bully tactics. A colleague was told his request for holidays would be based on performance ans ultimately be his decision if he went ahead and took them.

So my question is - Have I committed gross misconduct (nothing in my contract refers to this)? What would you do?

From your explanation, it appears you are being treated unreasonably, particularly if it is commonplace for these kinds of calls to be made to competitors. Would dismissal here have an impact on your future employability in the industry?

What I would do would be document a timeline of exactly what happened, when, who was involved, being factual and clear and unemotional. Then you call ACAS - Website and telephone number below.

http://www.acas.gov.uk/index.aspx?articleid=1565

ACAS will objectively set out what would be reasonable and lawful behaviour in the circumstances as well as clarifying the procedures that the employer will need to follow in order to comply with the law.

If you think you have a case, an employment lawyer would help you take action to negotiate a settlement and should be willing to give you an initial consultation without charge.

If your employer provides an Employee Assistance Program helpline, this might be a quick way of getting some initial employment law advice.

Good luck.

 

[HowardD]

I just think it's pretty harsh to be sacked for this offence which is the first blemish on a 2 year employ.

Did you know that in most instances, you need two years continuous service to qualify for redundancy pay?