gross misconduct..

[anon134]

Hi.
I worked for a charitable organisation as a full time substance misuse worker for a ten month period..during this time I got quite friendly with another member of staff there.he was two yeas younger than me (23) and an ex drug addict himself.he had been 4years clean and had been employed by the organisation on a full time basis for a year and a half.he was a paid member of staff and had an employment contract also,he was the head of a social enterprise that the organisation ran (a gardening business) and had been given a job title to reflect that,although he still lived in what was known as the supported or recovery house run by the organisation due to financial and accommodation purposes.it had always been made very clear to me through out my employment that he was a staff member and not a client..he was noted as a member of staff on payroll,on our daily register and lunch lists etc..anyway,he started taking an interest in me and texts from him started getting more frequent.he was a nice guy who seemed to have done well for himself and was seen as the sort of trophy of the organisation.one night thinking nothing of it,we went out to dinner together and had a nice time,something which I didn't mention to my colleagues as the town in which we live is tiny and prone to gossip..I preferred to keep my business to myself.the next day however,I was called into the office by my boss..a very religious,controlling character..who told me that he knew about our meal and that it was not something that we should repeat as the guy in question "was not ready for it" and that it he were to text me again I should let him know,something that I thought was a bit ludicrous..however,myself and the member of staff in question decided that we would not go out in public again.a few weeks passed and we exchanged texts and phone calls and he came round mine for coffee and a chat on a number of occasions..we hardly ever saw each other in work but when we did it was always very professional and we never told anyone our business outside of working hours.one Monday morning I was called in to the office and told that I was going to be suspended whilst an investigation into gross misconduct was being carried out.needless to say,I was shocked and appalled..my boss accused me of "taking advantage of a vulnerable adult who is still in recovery for a drug addiction",I was also told that he was not a staff member,but a "service user member of staff" which I know was ridiculous and completely fabricated to cover his ass..I was a single parent and did not have the money to persue legal advice or proceedings so the investigation continued..during this time,I was told by other members of staff I would not ever be able to work with vulnerable again if dismissed for gross misconduct which made me panic,so I handed in my notice (which was accepted) before I could get sacked..I wish however that I had fought it now.
What do you think of my situation?how do I go about refs now?will it be on my crb?as I plan to continue working in the sector..

[charitynjw]

Re: gross misconduct..

Hi anon134, & welcome to Legal Beagles.

Just to be clear on this, were you also a paid employee?

[anon134]

Re: gross misconduct..

Hi anon134, & welcome to Legal Beagles.

Just to be clear on this, were you also a paid employee?

Yes,I was

[MissFM]

Re: gross misconduct..

Hi.

I worked for a charitable organisation as a full time substance misuse worker for a ten month period..during this time I got quite friendly with another member of staff there.he was two yeas younger than me (23) and an ex drug addict himself.he had been 4years clean and had been employed by the organisation on a full time basis for a year and a half.he was a paid member of staff and had an employment contract also,he was the head of a social enterprise that the organisation ran (a gardening business) and had been given a job title to reflect that,although he still lived in what was known as the supported or recovery house run by the organisation due to financial and accommodation purposes.

it had always been made very clear to me through out my employment that he was a staff member and not a client..he was noted as a member of staff on payroll,on our daily register and lunch lists etc..anyway,he started taking an interest in me and texts from him started getting more frequent.he was a nice guy who seemed to have done well for himself and was seen as the sort of trophy of the organisation.one night thinking nothing of it,we went out to dinner together and had a nice time,something which I didn't mention to my colleagues as the town in which we live is tiny and prone to gossip..I preferred to keep my business to myself.

the next day however,I was called into the office by my boss..a very religious,controlling character..who told me that he knew about our meal and that it was not something that we should repeat as the guy in question "was not ready for it" and that it he were to text me again I should let him know,something that I thought was a bit ludicrous..however,myself and the member of staff in question decided that we would not go out in public again.

a few weeks passed and we exchanged texts and phone calls and he came round mine for coffee and a chat on a number of occasions..we hardly ever saw each other in work but when we did it was always very professional and we never told anyone our business outside of working hours.one Monday morning I was called in to the office and told that I was going to be suspended whilst an investigation into gross misconduct was being carried out.needless to say,I was shocked and appalled..my boss accused me of "taking advantage of a vulnerable adult who is still in recovery for a drug addiction",I was also told that he was not a staff member,but a "service user member of staff" which I know was ridiculous and completely fabricated to cover his ass..

I was a single parent and did not have the money to persue legal advice or proceedings so the investigation continued..during this time,I was told by other members of staff I would not ever be able to work with vulnerable again if dismissed for gross misconduct which made me panic,so I handed in my notice (which was accepted) before I could get sacked..I wish however that I had fought it now.

What do you think of my situation?how do I go about refs now?will it be on my crb?as I plan to continue working in the sector..

Hi Anon 134

I hope you don't mind but I have taken the liberty of putting some paragraph breaks in your post to make it easier to read.

There are some very knowledgeable employment experts on here who will be able to help you.

FWIW, I think you have been treated unfairly and your exboss sounds like a control freak extraordinaire.

Obviously, vulnerable people in recovery need protection but in this case he was 4 years into recovery, was employed with real responsibilities and was part of the "real" world again. I don't see how entering into a friendship, even a romance, with a colleague is anyone else's business unless it is specifically forbidden in your contracts - but even then...:ohwell:

[charitynjw]

Re: gross misconduct..

Hi.
I worked for a charitable organisation as a full time substance misuse worker for a ten month period..

There's the main problem, though.
Since April 2012, employees need 2 years continuous service in order to gain full employment rights.
Unfair, or more particularly in this case, constructive unfair dismissal, is in this category.
Discrimination, imho, is not likely to enter into the equation, as you would need to prove for instance that the discrim was specifically aimed at you because you are a member of the opposite sex, or is aimed at the 'protected characteristic' generally. (We don't even know whether this applies at all, lol).
If the resignation occurred more than 3 months ago, it would now be out of time for an Employment Tribunal claim.

As for references, employers (unless they are idiots) will tend to give neutral, rather than 'bad' ones, because unless they can substantiate criticisms, they can lay themselves open to a court claim for negligent misstatement (or worse).

This should not affect a DBS (formerly CRB) check.

[anon134]

Re: gross misconduct..

There's the main problem, though.
Since April 2012, employees need 2 years continuous service in order to gain full employment rights.
Unfair, or more particularly in this case, constructive unfair dismissal, is in this category.
Discrimination, imho, is not likely to enter into the equation, as you would need to prove for instance that the discrim was specifically aimed at you because you are a member of the opposite sex, or is aimed at the 'protected characteristic' generally. (We don't even know whether this applies at all, lol).
If the resignation occurred more than 3 months ago, it would now be out of time for an Employment Tribunal claim.

As for references, employers (unless they are idiots) will tend to give neutral, rather than 'bad' ones, because unless they can substantiate criticisms, they can lay themselves open to a court claim for negligent misstatement (or worse).

This should not affect a DBS (formerly CRB) check.

Thank you for you reply.here's the thing,I have been in touch with my ex boss and asked how he feels in terms of references and he said that he could not provide me with a reference without stating what they "perceived happened" or they would be in "deep trouble".he also stated that he would have to divulge the fact that I resigned under investigation..how should I reply to that??I don't know what to say or how to put it if you know what I mean..I want to know that I am legally in the right before approaching him.its a relief to know that it will not be on my Crb check also.I resigned a little over three months ago so I could do nothing about the it now?I was just so scared and panicked at the time that I wasn't thinking clearly..

[teaboy2]

Re: gross misconduct..

Are you still in contact with the other member of staff?

If they do state what perceived happened, they would have to also then prove in court that the other staff member was a vulnerable person, was not a full time employee and was not capable or mentally stable to pursue a romance with a work colleague, which given he was responsible for the care of others (head of a social enterprise that the organisation ran (a gardening business)) then your former boss will have to mountain the size of Olympus Mons. The fact he still lived in accommodation provided by them is irrelevant if he was there purely due to lack of local accommodation else where or due to financial reasons, and i suspect he was paying rent for his accommodation too.

As most of what happened occurred outside of working times, then the employer really had no grounds to suspend you in the first place as that is your private time and what you do then is non of your employers business in normal circumstances (which i believe this is), let alone make up this ridiculous accusation that they threw at you. So if it were me, i would let the employer say what they perceived happened in a reference and then sue them for libel, distress and damages (preventing you gaining future employment) in court. Our you could write to the former employer outlining your intent to sue if they provide anything libelous or which can not be proven as a fact in any reference, and what they perceived happened is not a matter of fact but an opinion, which is wrong and which can not be justifiable in law, and that therefore your suspension based on such allegation was likely a breach of your employment rights (and subsequently your resignation was on grounds of constructive dismissal) as well as your basics rights outside of work, such as right to a personal life which covers your right to carry out activities in your spare time unhindered (unless the law permits it) by a third party (including employer) as well as your right to privacy, which covers your personal decisions such as who you romance or enter a relationship with, or in this case, whom you go for a meal with or have round your house for a coffee or a chat.

[anon134]

Re: gross misconduct..

Are you still in contact with the other member of staff?

If they do state what perceived happened, they would have to also then prove in court that the other staff member was a vulnerable person, was not a full time employee and was not capable or mentally stable to pursue a romance with a work colleague, which given he was responsible for the care of others (head of a social enterprise that the organisation ran (a gardening business)) then your former boss will have to mountain the size of Olympus Mons. The fact he still lived in accommodation provided by them is irrelevant if he was there purely due to lack of local accommodation else where or due to financial reasons, and i suspect he was paying rent for his accommodation too.

As most of what happened occurred outside of working times, then the employer really had no grounds to suspend you in the first place as that is your private time and what you do then is non of your employers business in normal circumstances (which i believe this is), let alone make up this ridiculous accusation that they threw at you. So if it were me, i would let the employer say what they perceived happened in a reference and then sue them for libel, distress and damages (preventing you gaining future employment) in court. Our you could write to the former employer outlining your intent to sue if they provide anything libelous or which can not be proven as a fact in any reference, and what they perceived happened is not a matter of fact but an opinion, which is wrong and which can not be justifiable in law, and that therefore your suspension based on such allegation was likely a breach of your employment rights (and subsequently your resignation was on grounds of constructive dismissal) as well as your basics rights outside of work, such as right to a personal life which covers your right to carry out activities in your spare time unhindered (unless the law permits it) by a third party (including employer) as well as your right to privacy, which covers your personal decisions such as who you romance or enter a relationship with, or in this case, whom you go for a meal with or have round your house for a coffee or a chat.

Thank you for your reply.I have very little communication with the member of staff in question as I think I was so traumatised by what happened that I pushed him away a little bit,and I know he was made to feel very guilty by my ex boss too so he felt bad for me and the fact that I lost my job..shortly after I left though,he handed in his notice and moved out of the accommodation in question,so my ex employer ended up losing both of us in the end.
I have a job interview for a drug worker position on Tuesday and I'm dreading the whole referencing/reason for leaving issue..my interview is for an agency based in the same town as my ex place of work so I know that we will come in to contact with each other at some point..luckily my ex boss is not a very liked person and the organisation I used to work for wasn't exactly popular amongst the other agencies within that sector..

[charitynjw]

Re: gross misconduct..

Perhaps these court case decisions might help.

http://www.carruthers-law.co.uk/arti.../#.UokRJtK8DX9

Negligent Misstatement: Employee References.

February 1, 2012
Spring v Guardian Assurance plc and others [1994] IRLR 460 HLThe case of Spring v Guardian Assurance plc and others [1994] IRLR 460 HL, involved a Claimant who was employed by an insurance firm. His employer whose company he was planning to leave found out he was to join a rival firm and he was dismissed.

The main issue in the case was that of negligent misstatement. His new employer asked for a reference and his former employer gave an unfavourable one which as a consequence he wasn’t able to get a job for several years, but was also struck off the insurance industry register.The House of Lords found that the employer had been negligent in providing the reference to future employers which relied upon allegations such as detailed above which had not been properly investigated. The court said it would expect an employer in order to discharge their duty to provide an accurate and fair reference, to make reasonable enquiries as to the factual basis of the statements. They referred to the case of British Home Stores Limited v Burchell [1980] I.C.R. 303. (E.A.T.). This case stated that an employer should be confined as to statements as to those matters to which they had investigated and had reasonable grounds for believing they were true.

McKie v Swindon College [2011] EWHC 469 (QB).

The most recent case of negligent misstatement is that of McKie v Swindon College [2011] EWHC 469 (QB).This was a case which did not involve a formal reference. McKie had left his employment in 2002 at Swindon College. He had followed on from that and had worked at various academic institutions. In May 2008 he took a job as a Director of Studies and Lifelong Learning at Bath University.After he had started work Swindon College sent an email to Bath University which said that Swindon would not accept Mr. McKie on to their premises due to issues which had arisen during his employment.No claim was brought in defamation because of the defence of qualified privilege but a claim was brought in negligence.Mr. McKie alleged that no investigation had been carried out before the email had been sent and that the lack of investigation and falseness of the email constituted breach of their duty to him.Swindon argued that the email was not a reference and as such Spring v Guardian Insurance Plc did not apply. Swindon College had not been asked to provide the information. The judge however found that the employer still owed a duty of care. It was clearly foreseeable that the email would have an impact on his new employment. The judge thought that it was “Blindingly obvious”.Another difficult question was the six year gap. The judge found that the fact that Swindon College had offered this view meant that there was sufficient proximity.The court found that the breach of duty has caused Mr. McKie to lose his job and as such was entitled to compensation from Swindon College.

Jackson v Liverpool City Council 2011.

The most recent case of negligent misstatement is that of Jackson v Liverpool City Council 2011.The difference in this case was that the Court of Appeal accepted the reference was truthful however unfortunate for the Claimant and the employer would have failed in its duty to the employer if they had not responded.

http://www.carruthers-law.co.uk/news/negligent-misstatement-jackson-v-liverpool-city-council-2011/#.UokPXdK8DX8

May 26, 2012
Negligent Misstatement-Jackson v Liverpool City Council [2011] EWCA Civ 1068

This Negligent Misstatement case is a rare example when the Court found in favour of the employer. The employee had left with good references, but a later reference was provided by the employer which referred to record keeping issues with the employee but that these issues had never been investigated as to whether they were true and accurate. The Court of Appeal felt that the employer could not be criticised for referring to these allegations as it was made clear in the reference that the allegations where untested and unsubstantiated.

• The fact that the employee failed to get the job was unfortunate.
• Relevant to the claim was the fact that the employee left before the allegations had been investigated . Also the reference stated that if the allegation had been found to be true then it would have resulted in a performance plan rather than disciplinary action. This meant that the reference was both true and accurate and was not misleading.
• An employer is under a duty of care as to references. The employer will breach that duty if the reference is false, inaccurate or misleading.
• This case provides useful guidance on how to deal with a situation when an employee leaves before concerns about their performance or conduct can be investigated. The employer can disclose the allegations as long as it makes it clear that they have not been investigated and therefore no assumptions should be drawn. Also if it is confirmed that, regardless of the outcome of the investigation, the employee would not have been dismissed.
• If an employee leaves in circumstances where there are questions over their performance or conduct, or they arise after they have left, employers should disclose such issues accurately to any new employer. They should make it absolutely clear that they have not been investigated and that no assumptions can be made.

[CleverClogs]

Re: gross misconduct..

FWIW, I think you have been treated unfairly and your exboss sounds like an obstructed arsehole.

I've fixed your post for you. :rofl:

[CleverClogs]

Re: gross misconduct..

Thank you for you reply.here's the thing,I have been in touch with my ex boss and asked how he feels in terms of references and he said that he could not provide me with a reference without stating what they "perceived happened" or they would be in "deep trouble".he also stated that he would have to divulge the fact that I resigned under investigation..how should I reply to that?

Tell the stupid onanist that he is talking nonsense - all you require and all you expect him to give is a "neutral reference", wherein he states when you started work for that firm/scheme, when you ceased and the position(s) you filled.

[anon134]

Re: gross misconduct..

Even though this occurred three months ago and I gave in my notice rather than being dismissed (on the same day I received the letter stating my employment was being terminated due to gross misconduct on my part,I panicked and gave my notice in which was accepted.my ex employer stated that as he was willing to accept my notice,I should disregard the letter of dismissal).could I still take them to an employment tribunal?
Also,new evidence has come to light..I have been told by a current inside employee that my ex boss lied to the legal team that he was using at the time of the investigation (peninsula) and stated that the male staff member in question was in fact a "service user" of the organisation,not a member of staff..

[CleverClogs]

Re: gross misconduct..

I have a job interview for a drug worker position on Tuesday

Like this one?

[charitynjw]

Re: gross misconduct..

Even though this occurred three months ago and I gave in my notice rather than being dismissed (on the same day I received the letter stating my employment was being terminated due to gross misconduct on my part,I panicked and gave my notice in which was accepted.my ex employer stated that as he was willing to accept my notice,I should disregard the letter of dismissal).could I still take them to an employment tribunal?
Also,new evidence has come to light..I have been told by a current inside employee that my ex boss lied to the legal team that he was using at the time of the investigation (peninsula) and stated that the male staff member in question was in fact a "service user" of the organisation,not a member of staff..

Hi anon134,

I'm not sure quite what you mean here, but technically, when you hand in your notice, the employer accepts your 'breach of contract' (ie, that you no longer wish to be under a contract of service with them), & so they 'dismiss' you.
As you have only worked there for 10 months, unfair dismissal isn't an option.

Have you been paid for accumulated holidays, etc?

[anon134]

Re: gross misconduct..

Hi anon134,

I'm not sure quite what you mean here, but technically, when you hand in your notice, the employer accepts your 'breach of contract' (ie, that you no longer wish to be under a contract of service with them), & so they 'dismiss' you.
As you have only worked there for 10 months, unfair dismissal isn't an option.



Have you been paid for accumulated holidays, etc?

They have paid me for holidays..I handed in my notice as when I am completing job applications for the future my reason for leaving will be handing in my notice,rather than being dismissed..in terms of refs,does my ex employer have to state that I was under investigation at the time in which my notice was handed in?or can he just give me a neutral ref,as in when I started,finished and what my position there was..I intend to disclose everything to my future employer as I believe that I have done nothing wrong or to feel guilty for.the town in which I live in is small and he is disliked by a lot of people due to his ways and the style in which he runs his organisation..
Also,I have been told that the investigation etc..will not appear on my crb check,is that correct?there were no court/police proceedings of any kind..