Should you be aware an act is gross misconduct before committing it?

[dicey1]

Hi any thoughts greatly appreciated.

Long story so tried to shorten it considerably.

Basically I was bullied for months at work (have evidence) but did not raise formal grievance against employee concerned as she is unpunishable and everyone who has stood up to her has been forced out of the company.

Finally flipped 'temporary insanity' and posted an out of work, unnamed critical comment on Facebook and almost immediately deleted it. Place of work was not public and majority of small amount of 'friends' abroad.

At time of comment I had no copy of employment contract or company disciplinary policies (which do not cover Intenet use) and only recieved them 4 days before disciplinary hearing for gross misconduct. The company does not have any electronic communication policies governing Internet usage and disciplinary policies are based on 2004 guidelines and never been updated to reflect 2008 Employment Act.

Week after offence summons to office for unannounced investigatory meeting where I was told it was sackable gross misconduct offence. Employer investigated his own complaint and was ultimately responsible for the final decision and mitigating cicumstances (bullying and provocation) were deemed to be "unacceptable excuses".

Finally raised grievance for bullying - dismissed due to "insufficient physical evidence" despite detailed notes of dates and instances. Employer knew of bullying issues 7 months prior to grievance and even when bullying was again raised he did nothing. Employer waited until formal grievance some 4 weeks after second allegation of bullying before took any action at all and then believed version of unpunishable employee who relied on recollection of memory from 11 months ago!

Disciplinary held by external consultant who has accrued lot of work through company's disputes with the more unfortunate employees and disciplinary was a 2 hour cross examination with key issues conveniently omitted from his final report.

No witness statements/interviews were disclosed, the consultant continued to investigate and interview witnesses AFTER the disciplinary hearing and unbeknown to me at this point in time, my employer had written a statement (which the consultant had) about me. Oh boy!! This statement only just disclosed through discovery request for pending ET states that I am a vindictive, malicious, libellous, serial bully who is not as innocent as I pretend to be. And this is the person responsible for the final disciplinary sanction!

They made me wait 4 weeks to find out if I had been sacked or not before issuing decision and entire process took 8 months of uncertainty.

While the disciplinary was going through the motions my working life was literally made a living hell. Made to do 2 peoples jobs without support, mobbed by former friends who are afraid of being the next target of the bully and turning up for work to find one of my regular shifts had been given away with better benefits than I enjoyed, to be sent home in front of the bully as being surplus to requirements.

The second grievance over reduction in hours was lodged which was dismissed and a final written warning was issued for the disciplinary which incorporated 2 new behavioural issues I knew nothing at all about. The person directly involved in second grievance was in attendance as a minute taker.

Fast forward to disciplinary and second grievance appeals. The original disciplinary consultant and a second consultant with the second grievance minute taker again in attendance.

I had started taking my own tape recorder to all meetings as I had real difficulty in obtaining an unabridged copy of the unannounced investigatory meeting.

I had permission to use the recorder, it was in prominent position with red recording light glowing and during comfort break I had completely forgotten about it. When I came to transcribe the meeting I found a conversation between the consultants and my employer (who was not present at appeals meetings). It was clear he had been electronically eavesdropping on entire first half of appeals meeting BUT all 3 of them were conspiring to buy an identified witness "to remove any complications" and to sit and wait it out as the only thing they could do.

Just before the Appeals my employer set another new employee on to remove any possibility of me obtaining my removed without notice shifts back. On the same day as the appeals (christmas pay) he deliberately underpaid me for training by 4 hours. On an extremely low subsistence income 4 hours is actually a lot!

I already knew (gut instinct) they were just waiting for the right opportunity to get rid of me before I listened to their comfort break conversation and the following day I resigned without waiting for outcome of appeals which took another 6 weeks for the decision.

I am now in preparation stage for tribunal hearing.

But the biggest question I cannot find clear answers to, however obvious it seems, is - if you do not know you are committing gross misconduct offence and company has no policies for that particular act of gross misconduct then how can you be aware of what you are doing is a punishable offence?

In contrast - the unpunishable employee who has had several complaints against her which clearly constitute written gross misconduct policies and has remained without sanction in the company's selective disciplinary process has a clean record as employer alleges to have destroyed all such complaints following specific request for discovery in order to prove unfair treatment among employees.

Any thoughts on comfort break conversation where "we" will have to buy them to remove complications" also welcome.

Any thoughts on my chances at ET at all for constructive unfair dismissal, in particular since I did not wait for outcome of appeal hearings. Couldn't do it any more - I felt worthless, undervalued and demoralised at time of resignation. After 9 years of loyalty, an exemplary employment record I can't even get a decent reference for my new job so it looks like JSA subsistence indefinitely as I cannot even mitigate my loss when I find employment dependent on previous employer reference.

Many thanks for your time - thought it only happened to me but judging by this Forum it is a regular occurence, what a shame loyal, hard working and conscientious employees can be treated so abysmally in the first place.

[Eloise01]

Re: Should you be aware an act is gross misconduct before committing it?

Simple question, which in all of this description seems to have got lost... Did you or did you not post an unacceptable comments about your workplace / employer / a collaague on Facebook, and has the employer evidence that such a comment was made?

[dicey1]

Re: Should you be aware an act is gross misconduct before committing it?

Yes I posted an unnamed critical comment on Facebook in the heat of the moment and almost immediately deleted it. A work colleague on Facebook at the time when she was at work saw the comment and passed it on to employer. I admitted it straight away when at the investigatory meeting.

[Eloise01]

Re: Should you be aware an act is gross misconduct before committing it?

In that case, you were guilty of what you were accused off and yes, it's certainly within the scope for gross misconduct. I am unclear why you are claiming constructive unfair dismissal - were you not actually dismissed? But resigning before the outcome was a serious mistake - you should have awaited the outcome and claimed unfair dismissal which at least gives better odds.. Polkey (a financial penalty for contributing to your own dismissal though your actions) would almost certainly come into play if you win anyway, and that could wipe out anything that you win!

By the way - I cannot tell you what the tribunal will decide about these recordings you say you have but there is specific and clear case law on this matter from exactly the same circumstances in another case - such recordings are not admissible as evidence unless there is a public interest issue, and what you have is not public interest in law. So if the tribunal do accept them, which they shouldn't, there is already an open line of appeal to an EAT for the employer.

My advice would be that if a settlement is offered, seriously consider taking it. And don't, in future, post stuff about work on Facebook and don't friend work colleagues. I keep telling people that and nobody ever listens. It's fast becoming the number one cause for dismissals.

[FlamingParrot]

Re: Should you be aware an act is gross misconduct before committing it?

This was exactly my argument when I was dismissed for alleged GM, that I wasn't aware that was I was accused of doing would constitute GM, nor was I given any warnings, neither written not verbal, before they proceeded to suspension and disciplinary. In my case, just showcasing some of my work online rather than slagging anyone off, and it was in the pre-Facebook era. There was nothing on my contract about Internet use, intellectual property, etc. because my contract was from the 90s, before those things came into play, nothing in the employee handbook either. Still I was told that was no excuse because "there are certain things that you are supposed to know to do your job".

I submitted a claim of unfair dismissal but ended up accepting a modest commercial settlement. Like many in these circumstances, I was very tempted to just resign but I had good advice, I was told it would be much harder to claim constructive dismissal if I resigned than unfair dismissal if I didn't.

[FlamingParrot]

Re: Should you be aware an act is gross misconduct before committing it?

Yes I posted an unnamed critical comment on Facebook in the heat of the moment and almost immediately deleted it. A work colleague on Facebook at the time when she was at work saw the comment and passed it on to employer. I admitted it straight away when at the investigatory meeting.

This is disgraceful! I'm aware that this is very common but that doesn't make any more acceptable, there are just too many sad people out there who feel the need to grass you up! :mad2: :mad2: :mad2:

[leclerc]

Re: Should you be aware an act is gross misconduct before committing it?

This is disgraceful! I'm aware that this is very common but that doesn't make any more acceptable, there are just too many sad people out there who feel the need to grass you up! :mad2: :mad2: :mad2:

FP, I had something similar happen, ie I suggested that part of a supervisor's job description was BS and posted a lot of critical stuff. However, most of it apart from the suggestion of mine about the job description was in the public domain. Depending on the comments made will depend on the finality but it does give an important lesson to people. If you have your work colleagues as friends or are within a group about work, then NEVER treat them as your real friends cos they will shaft you. Personally, dependent on the comments made, I do think that being sacked for GM may be slightly harsh since they were deleted immediately.

[Eloise01]

Re: Should you be aware an act is gross misconduct before committing it?

But the point is that the comments were seen and reported. What you say on Facebook is no different from what you say to someones face, or what you stick on the staff noticeboard. People get hung up on social media policy - it should not require a policy to tell you what you should or should not say in any circumstance in or about the workplace, your employer, or you colleagues. I think leclerc has hit the nail on the head - social media warps peoples mentality about what a "friend" is. Here's "one I made earlier" - http://www.redundancyforum.co.uk/fre...ary-processes/

And life is never simple. I wouldn't assume that the work colleague was in the wrong or "grassed him up" in the perjorative way that such a comment implies. There are always two sides to every story; and perhaps the OP was not popular with everyone (relatively obviously not), and perhaps even with good reason. This site grassed up Melanie Boswell - with good reason. I would lay bets that she doesn't see it that way!

As leclerc suggests, the trick is not to not get caught - it is to not put yourself in a position to get caught. Save your rants for real friends and over a pint in a pub where nobody from work could overhear you.

[leclerc]

Re: Should you be aware an act is gross misconduct before committing it?

But the point is that the comments were seen and reported. What you say on Facebook is no different from what you say to someones face, or what you stick on the staff noticeboard. People get hung up on social media policy - it should not require a policy to tell you what you should or should not say in any circumstance in or about the workplace, your employer, or you colleagues. I think leclerc has hit the nail on the head - social media warps peoples mentality about what a "friend" is. Here's "one I made earlier" - http://www.redundancyforum.co.uk/fre...ary-processes/
And clearly the person who report the OP had their own agenda in doing so. Unfortunately, in work people have agenda and that means screwing anyone in the way, be it promotion or favour.
And life is never simple. I wouldn't assume that the work colleague was in the wrong or "grassed him up" in the perjorative way that such a comment implies. There are always two sides to every story; and perhaps the OP was not popular with everyone (relatively obviously not), and perhaps even with good reason. This site grassed up Melanie Boswell - with good reason. I would lay bets that she doesn't see it that way!

As leclerc suggests, the trick is not to not get caught - it is to not put yourself in a position to get caught. Save your rants for real friends and over a pint in a pub where nobody from work could overhear you.

I think Eloise, is that the trick is that if you have bad comments, then for god sake, make sure they are in the public domain and not about yourself. I knew the person who printed out the piece on me cos someone tipped me off about the post(a mate at work), and furthermore, I stated when I was first interviewed that I had made a mistake and that I was infuriated with work and it was an off the cuff remark which was later deleted(I should point out that I was caught but I knew exactly who had printed it off cos it did not take a genius to work out ). Someone at the time said to me, if you have a bad day at work then on social media merely say "crap day" but never expand further on the why and especially not when you have work colleagues who will read your comment and in a second hit the print/screw button .

[Eloise01]

Re: Should you be aware an act is gross misconduct before committing it?

I agree entirely leclerc. But just as with clients, no matter what anyone says on their own behalf, I try to keep an open mind to all possibilities. Yes people have their own agenda. But that agenda is not always straightforward. There is more than enough information in the OP to suggest that others may not see the OP or the OP's position in the same way that the OP does. That does not mean the OP is right or wrong - just that this is their perspective and there may be others. So the reason could be promotion or favour - it could equally be getting back at someone who has bullied them, or someone who has dropped them in the **** and grassed them up! In employment law (any kind of law, but especially this sort of law!) if they can't take a suggestion that they might be wrong, or that there is another side to the story, then people have no sense setting foot in a tribunal - because right or wrong they are going to hear some very unpalatable things about themselves in there! But still, you are absolutely right - it doesn't matter what the cause or what the excuse - say nothing you can be hauled up for. People know this sort of thing when it comes to personal interactions - they say things to a computer they would never say to real life and forget that the computer sends that all over the place! In this country we are nowhere near as paranoid as the USA, but look at the way things are going there and you see what will eventually happen here. Employers asking for peoples Facebook pages as part of recruitment (or just looking them up if they are daft enough to have their privacy settings low); Facebook being routinely scanned for employees comments. Etc. These sorts of things are not yet routine here. But as the internet and social media puts more and more "out there" there is more and more to find.

I do not know whether this is an true story or not - if it isn't it ought to be! But someone once told me that the CIA had a conversation with Mark Zuckerberg, and were astounded at the amount of personal information that people openly posted about themselves and which could be mined from Facebook. They wanted to know how on earth anyone could persuade people to part with so much information about themselves voluntarily. It is reputed that Zuckerberg's reply was "because people are stupid b****d's".

[labman]

Re: Should you be aware an act is gross misconduct before committing it?

I can quite believe that. In this day and age, if you know someone's name, there is very little you can't find out about them if you know where to look. They don't necessarily even have to have 'volunteered' it.

[Inca]

Re: Should you be aware an act is gross misconduct before committing it?

I can quite believe that. In this day and age, if you know someone's name, there is very little you can't find out about them if you know where to look. They don't necessarily even have to have 'volunteered' it.

That's technology for you Labs.........sometimes the old ways really were the best ways.

[FlamingParrot]

Re: Should you be aware an act is gross misconduct before committing it?

I can quite believe that. In this day and age, if you know someone's name, there is very little you can't find out about them if you know where to look. They don't necessarily even have to have 'volunteered' it.

Indeed, lots of things are in the public record, however, the less you own/do, the lower the likelihood of people finding out about you. If you are a company director you've had it, because that's all in the public domain, as is the land registry, etc.

Facebook offers a way to adjust your settings so people can't see anything about you, the problem is when you get friend requests from certain people you'd rather not have on there but at the same time, it could be a sticky situation if you refuse a friend request from your boss!

[Eloise01]

Re: Should you be aware an act is gross misconduct before committing it?

Indeed, lots of things are in the public record, however, the less you own/do, the lower the likelihood of people finding out about you. If you are a company director you've had it, because that's all in the public domain, as is the land registry, etc.

Facebook offers a way to adjust your settings so people can't see anything about you, the problem is when you get friend requests from certain people you'd rather not have on there but at the same time, it could be a sticky situation if you refuse a friend request from your boss!

Or you could not be on Facebook, never tweet anyone, and have a professional identity which has it's own legal existence entirely seperate from who you are personally so that really annoyed employers can't find you. Works a treat I have found! I found out long before the internet even existed how easy it was for a very annoyed employer to find you. And took steps....

[enquirer]

Re: Should you be aware an act is gross misconduct before committing it?

Simple question, which in all of this description seems to have got lost... Did you or did you not post an unacceptable comments about your workplace / employer / a collaague on Facebook, and has the employer evidence that such a comment was made?

Unacceptable in what way and to whom?