Disciplinary Hearing, Employer seeking Dismissal

[KIP1]

Good Evening all, and a Happy New Year. I would appreciae any views and advice on my current predicament. I have worked for the same employer for the best part of a decade with no disciplinary or performance issues. Last month I made an unintentional procedural error of the sort which is not that uncommon, but the company argue could have damaged their business. (They have not provided any evidence that it has done so). The company have deemed this as gross misconduct and used the term 'gross negligence' to describe my actions. I do not know which definition they have used, but all the examples I have seen so far where the term has been used have involed the risk or causation of death or serious injury, and a behavioural choice to wilfully disrregard procedures. Is there a standard legal definition for this term? As stated I have no previous sanctions but for the last few years have been an elected workorce rep which has not always endeared me to all managers, and there has been a litany of hostility of which I suspect the exaggeration of these charges may be the latest. It is not the first time this sort of error has ocurred and has not been dealt with in the past by formal action. I am aware the company is expected to demonstrate consistency of approach, but can they get round this by using a recent management change to draw a line under everything which has one before and legitimize a new and vengeful approach? I have secured representation from the full time Union official and I am drawing on all my own experience and training as a rep to save my job. I would particularly like to hear from anyone with knowledge of road transport legislation and employment law. Most grateful for any information at all. Thanking everyone

[ULA]

There is no universally legal definition of whether something constitutes an act of gross misconduct and it will depend on the facts of each case. However, employers are recommended by the ACAS code to provide examples in their disciplinary policies of what they believe constitutes gross misconduct. So, you need to look at your employer’s disciplinary policy to check whether the procedural error allegation falls within the examples or can be considered as similar in nature as those given for gross misconduct. If it does then the employer would be correct, at the time they informed you of a disciplinary hearing taking place, to set out that the allegation was given this level of seriousness. This gives the maximum level at which disciplinary action could be taken, however the outcome of any disciplinary may conclude at a lesser level. If the allegation does not fit into an example or something similar in nature to the list of gross misconduct offences, then this is one area upon which you argue your case in regard to the severity being placed on the allegation.

Changes in management often do bring a change in how policies and procedures are enforced and if the new management felt things had become lax, they are within their rights to introduce an environment whereby staff are required to adhere more strictly to them. Ideally staff should be informed that is going to be the case going forward and then consistency of approach should be evident.

Your status as an elected workforce rep should not mean that you are treated any differently in terms of process and outcome than another employee facing the same allegation who is not an elected workforce rep.

[KIP1]

Thank you for your reply, I understand there is no legal definition of gross misconduct, however it is the term ''gross negligence'' for which I am seeking a legal definition, as I feel the company has sought to describe my actions in the worst possible terms to justify the dismissal which is probably imminent. I am hoping I can use the definition to demonstrate that my actions came nowhere near and save my job. Is there any such definition under English law or case law?

[ULA]

Gross negligence refers to an act taken without exercising even the most basic amount of care owed to others. Such an act involves a deliberate disregard for the safety or well being of another person. Gross negligence does not refer to acts undertaken with intent to harm another, but acts for which the person knew, or should have known, would result in injury or damages to another person.

So practically this means that the basic rule of law holds that everyone has a duty to take “reasonable care” to avoid causing injury or damages to another. “Reasonable care” means taking steps any reasonable person would take to ensure no harm is caused to another. If that person not only fails to be reasonably careful, but acts with a recklessness or with a willful and callous disregard for the safety or health of another, it may be deemed gross negligence.

Hope that helps.

[KIP1]

Thank You, that is most helpful