What is gross misconduct?

Mr Problem is employed as a waiter at Dim Ltd.  He frequently comes into work stoned and during work time he smokes a spliff on company premises.  His employers have come to accept that Mr Problem is not a dedicated employee, is sometimes late to work, makes mistakes and customers frequently complain but they blame themselves; perhaps they shouldn’t have employed him, and don’t think anything can be done.  Mr Problem passed his probationary period some time ago.

A problem employeeDuring month 24 of his employment, the company is sold to a new owner.  All of the employees transfer to the new company, Smart Ltd, under the transfer of undertaking (TUPE) regulations – and their length of service is preserved.  Mr Problem has now been employed for 26 months.

Smart Ltd is not happy with Mr Problem for several reasons: they don’t like customers complaining when they’re trying to establish a new business; they don’t like mistakes being made in work and they don’t like it when Mr Problem comes into work late. And they certainly don’t like Mr Problem thinking he can smoke illegal substances on company premises.  Not knowing what to do, they call Prosper HR Services.

Prosper HR Services intervene

An HR Adviser from Prosper HR Services comes to meet with Smart Ltd at their premises and explains that they can help – all they need is evidence of Mr Problem’s behaviour, and then they can investigate and establish a few ground rules.  Over that weekend Mr Problem gets very drunk on company premises and smokes a joint, and the employer, Smart Ltd, takes photos and gathers witness statements and then calls their HR Adviser at Prosper HR Services to say they have evidence.

An HR Adviser from Prosper HR arrives back at their premises with a letter for Mr Problem which advises:

  1. He is being suspended from work on the grounds of:
    • a) inappropriate drunken behaviour on company premises; and
    • b) bringing in and smoking an illegal substance on company premises
  2. That he will receive full pay during his suspension
  3. A disciplinary meeting will follow in five days’ time (date, time and location provided)
  4. That the outcomes of the investigation, if either (a) or (b) is found to be upheld, could result in a dismissal without notice (gross misconduct)
  5. That he has the right to be accompanied at the meeting by a trade union representative or a colleague
  6. That he is encouraged to prepare himself for the meeting and any defence he may have
  7. That he can rest assured that no decision about his future at Smart Ltd has been made: it will depend entirely on the evidence provided of his alleged wrongdoing.

Resignation to avoid dismissal

Two day later Mr Problem decides he doesn’t want to attend the disciplinary meeting.  He phones the HR Adviser at Prosper HR to say that he is resigning with immediate effect and won’t be working his notice; he hasn’t been happy in his employment for a while, and wants to look for a new job.  The Prosper HR Adviser advises Mr Problem that she’ll issue a letter within the next few minutes for Smart Ltd to pass to him – accepting the resignation with immediate effect, confirming that he will not be paid in respect of any notice period and other details such as outstanding holiday pay and when he can expect to receive his P45.  Within 30 minutes, Smart Ltd have hand-delivered the letter to  Mr Problem and Mr Problem passes all of his company property back to Smart Ltd,  says goodbye to some of his colleagues and leaves the premises quietly.

A successful intervention by Prosper HR

Three months on: Smart Ltd have since recruited and appointed a new waiter, and now they don’t have customer complaints.  In fact, their Trip Adviser ratings have hugely improved.  Smart Ltd is grateful to Prosper HR Services for all of their assistance.

Our HR expertise at your service

Firstly, Prosper HR Services have an understanding of employing people, employee contracts, and, crucially, commercial factors too. In some situations, for example this one, it might be ok to an employer if an employee wants to leave without working (or being paid for) their notice –both parties can jointly agree to vary the written terms and conditions.

A lot of new Prosper HR clients don’t initially have their employees on employment contracts when they contact Prosper HR; that’s ok, because Prosper HR can put these in place for you – often very quickly.  If you don’t have them  in place, the risk is that it can lead to a dispute about what the terms and conditions of employment are – not worth the time, cost or hassle of a dispute in our book!

Secondly, Prosper HR Services have an understanding of the law and regulations surrounding dismissals and what a fair dismissal looks like.  Failure to follow the correct disciplinary procedure could end in expensive litigation – for example, an unfair dismissal claim in the local tribunal office – and a large fine (and legal bill) for the employer (a fine which far exceeds the cost of using Prosper HR to help).

At Prosper HR Services we pride ourselves on tailoring our advice and service to meet your business needs and budget.

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