Gross Misconduct & Notice Period

[Ausmo87]

Hi there, hope you can help.

I am about to resign from my employment, and bring cases for discrimination, failure to make reasonable adjustments, harassment, victimisation, unfair deduction of wages, and breach of contract. I won't go into the detail of each of the above because it would be a bible. My employer is fairly unscrupulous and as a very senior employee I have led on the dismissal of other staff members; each of which were treated with contempt by the company (hence the reason I am leaving. I am "on side" now but I will become anathema when I resign).

I have a very long 6 month notice period IF I terminate employment, and a very short 1 month notice period IF the EMPLOYER terminates the employment. Yes, that's how cynical this employer is. I am hoping for 6 months PILON to avoid any funny business during garden leave.

I have a clause within my contract which states that neither notice period will apply if I am found to have committed gross misconduct. I have not committed gross misconduct, but I can see things far enough to know that my employer will attempt to fabricate a case against me whilst I'm on garden leave, in order to not have to pay the 6 months notice period. They did it before, successfully.

The only other mention of "gross misconduct" is the disciplinary policy within the company handbook. The disciplinary policy only applies to employees with over 2 years length of service, and I have less than that.

Questions:

1) If the employer does manage to fabricate a gross misconduct case against me, how "far back" in time will they be able to dredge up alleged misconduct of the past, and present that as a case against me? For example, could they action gross misconduct for something I allegedly did 1 month ago, 2 months ago or 6 months ago?

2) Is it possible for the employer to refuse to pay my notice period for gross misconduct, when the disciplinary policy does not apply to me?

3) What other defenses might I be able to deploy in order to dissuade/stop them from fabricating a confected case against me to reduce my notice period?

Thanks

[ULA]

PILON and garden leave are two different things.

Paying someone PILON needs to be an option set out in the contract of employment as an alternative to someone having to work out their notice. Similarly putting someone on garden leave has to be set out in the contract of employment.


In answer to your questions:

1. They could go back a few months, however any longer in my view would lead to the question of why, if the matter was so serious as to warrant gross misconduct, did they leave it so long to take action.

2. Contractual notice periods and notice payments will stand as per your contract of employment, except in the case of them proving gross misconduct.

[atticus]

I would qualify ULA's answer no 1 by raising the possibility of it being said that an act of gross misconduct occurring longer ago has only just come to light having been concealed by the employee so as to prevent discovery.