Unauthorised absence and gross misconduct

[basa48]

Apart from my main job I have a small part time evening job doing 2 hrs a day (5 days a week) office cleaning. I have worked for my present employer (which is a multimillion pound Facilities Management company) for over 2 years having been TUPEd over by the previous employer whom I worked for on the same contract for 4 years.


In June this year I requested 5 weeks off for a major family holiday (our 25th wedding and my daughters 18th & 21st respectively – so a big year). The leave requested was from late September to early November this year, so I had given over 3 months notice. I am entitled to 20 working days leave per year and the total requested was 30 working days. Naturally I made it quite obvious I would not expect to be paid for the excess days.

The holiday year is calculated from 1st Oct to 30 Sept each year, so in effect I was due 20 days from 01 Oct. (I had no days left over from the previous years allocation).


Initially my line manager hinted my request may be granted, although it would cause the company a few problems in covering my absence. They later turned me down flat and added if I did take the leave it would be regarded as gross misconduct and was likely to be summarily dismissed.


I responded that according to my Ts &Cs unauthorised absence is an act of misconduct not GROSS misconduct.(Gross misconduct being abuse, drunkenness, theft etc.). It also went on to say no one would be dismissed for an initial act of misconduct.


I have suggested if I am sacked I would probably seek legal remedies. What do you think?

[miliitant]

Re: Unauthorised absence and gross misconduct

In june when you requested the holiday, did you receive and official confirmation of your request

say a modified leave sheet, email etc

before you booked the holiday, how did you know you had been granted the days off

if they have only just said no for no apparent reason after you have booked your holiday and been permitted to take those days off, they will be in very hot water if a disciplinary is conducted

[basa48]

Re: Unauthorised absence and gross misconduct

In june when you requested the holiday, did you receive and official confirmation of your request

say a modified leave sheet, email etc

Yes I have texts to say they are looking at my request.

before you booked the holiday, how did you know you had been granted the days off

I didn't, but I am entitled to 20 work days off per year.

if they have only just said no for no apparent reason after you have booked your holiday and been permitted to take those days off, they will be in very hot water if a disciplinary is conducted

No the holiday was booked before I requested the leave. They never definitely said I could have the time off.

Basically I booked it, told them, they considered it and said no.

My issue is the difference between misconduct and gross misconduct. Can the employer just decide it is gross misconduct because I have p*ssed them off?

[miliitant]

Re: Unauthorised absence and gross misconduct

gross misconduct

that is the conduct on the part of the employee which is so bad that it destroys the employer/employee relationship,

Most employers would identify intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence)

and gross insubordination as examples of gross misconduct.

do you have anything in your contract or employee hand book that constitutes gross miscouduct

in law their is no such thing now as summmary dismissal or "sacked on the spot"

disciplinary hearings such as fact finding and formal have to be conducted or any dismissal would be unfair

[Hurricane Puffrose]

Re: Unauthorised absence and gross misconduct

BUMPED

[basa48]

Re: Unauthorised absence and gross misconduct

.............do you have anything in your contract or employee hand book that constitutes gross misconduct

from memory no definitions of gross misconduct, but it does clearly state unauthorised absence is misconduct in a separate paragraph to gross misconduct. I don't have my Ts&Cs here with me, I'll check Monday.

in law their is no such thing now as summmary dismissal or "sacked on the spot"

disciplinary hearings such as fact finding and formal have to be conducted or any dismissal would be unfair

Yeh I realise that - TBH I am just wondering how far I can push this (short of a tribunal - that could be costly) and if I could claim some measure of a pay off. I have more or less decided to jack the job in anyway (it & the manager sucks), but I would like to screw them over before I resign (or get sacked)!!

(Does that sound bad !!??)

[miliitant]

Re: Unauthorised absence and gross misconduct

but it does clearly state unauthorised absence is misconduct

if that term is in your contract as misconduct and not gross misconduct, and if they sacked you, the dismissal would be unfair as misconduct is not a dismissal offence

like you said

depends how much you want to wind them up if they sack you

once they are aware of all the facts, i would be worried

but make sure you have the contract that states those terms in writing before and if you decide to do anything

you may get hush money if they decide to do anything stupid as an end result

tribunals are only costly if the judge considers your claim to be vexatious and without merit or substance, and will advise you to consider to withdrawl before any cost order at the case managerment stage/pre hearing review

[basa48]

Re: Unauthorised absence and gross misconduct

Thanks for that miliitant.

I really think due to all their talk of gross misconduct, dismissal and disciplinary procedures I feel some stress and depression setting in !!!

[labman]

Re: Unauthorised absence and gross misconduct

Playing Devil's Advocate, they have clearly refused your request. You may not like that, but they have refused it. You know that unauthorised absence is misconduct, and yet you are contemplating having not just one day off unauthorised, but ten days. If I was your employer, knowing you were away on holiday in direct breach of my refusal to let you have the extra time, I would be mighty annoyed.

[basa48]

Re: Unauthorised absence and gross misconduct

Playing Devil's Advocate, they have clearly refused your request. You may not like that, but they have refused it. You know that unauthorised absence is misconduct, and yet you are contemplating having not just one day off unauthorised, but ten days. If I was your employer, knowing you were away on holiday in direct breach of my refusal to let you have the extra time, I would be mighty annoyed.

Oh trust me labman, I do know I am in the wrong, but there are extenuating circumstances (the special reasons for the holiday and the notice given). My issue is with the 'punishment' - a good telling off or the sack. Which in your opinion is the proportionate one?

As you may have gathered there is some 'history' between me and this employer. They are totally incompetent as a company yet think they are above the law.

[labman]

Re: Unauthorised absence and gross misconduct

It's impossible for me to answer Basa as I just would not have put myself in that situation. I'm wondering if the choice is as straightforward as you make it, or whether there might be something which might be regarded as a dismissable offence for deliberately ignoring the 'instructions' of your employer.

I honestly hope it works out well for you, and for what it's worth, had I been the employer, I would have said yes in the first place. Just be 100% sure you know where you stand and what you're doing before taking the leap. Good luck!