Gross Misconduct After Contract Ended

[BubbaFett]

Resolved

[leclerc]

Re: Gross Misconduct After Contract Ended

Did they send you out a P45?

No reference given is as good as a bad reference.

You do not work for them so unless there is any criminal proceeding then there should be no further issues.

[teaboy2]

Re: Gross Misconduct After Contract Ended

My questions are thus:

I was not suspended or dismissed before my notice expired, can my previous employer change my reason for leaving to dismissed when that wasn't the case? I was under the impression I would have to rescind my resignation, they would have to accept that & then they can change it to dismissal? No they can not, the reference must be factual. In your case you resigned prior to any knowledge of any disciplinary procedures, therefore if they were to state that you resigned whilst under disciplinary or that your were dismissed as a result of said disciplinary, the reference would not be factual but in fact, and untrue reference. So an untrue reference would leave the door open for you to sue your former employer for libel, especially if it results in you losing your current new job

Despite the request from my current employer nearly 3 months ago for a reference from my previous employer it hasn't materialised. Current employer is not now actively chasing reference but my worry is it will come after the disciplinary decision is made & lead to me losing current job. I am aware a reference needs to be factual & could now state disciplinary matters took place but can it state I was dismissed? No, see above reply to first question - In regards to your concerns about your current employer, it may be best to have an informal chat with them and advise them of the situation, as from what i can see you did nothing wrong.

i am also concerned about the allegation that I may have helped the client avoid a financial penalty. This is categorically not the case but I am now concerned about criminal proceedings or action under section 55 DPA. I did not disclose any data, use it to further my own or others interests, commit fraud with it etc, but it seems that is what it is being turned into. - Form what you describe you accessed it during the course of your employement as part of your job requirements. So section 55A has not been breached as you would have been acting with the consent of the data controller (The employer). How else do they expect you to manage your there clients that have been assigned by them (employer) to you, for you to manage?!

My former client can confirm that she approached me outside of work & that her data was not compromised by me using it to contact her. She has made no complaint against me. She however has not been called as a witness by my previous company, or indeed me as I did not think they would see a statement from her as credible. The client used to call me at work, before I knew who she was, under the pretence of asking appointment times etc, which is why I accessed her data but sadly I never made any notes on the system to justify the calls. This was apparently part of her pursuance of me. - Securing a witness statement from her would but water on to the fire, so to speak, because the date is her data, she owns it, so her statement and submission that she had called you under the pretense of making appointments (as part of her own hidden attempts to pursue you romantically, unbeknown to you at the time) and hence why you accessed her data when she called, would secure you from any wrong doing.

I have put myself in a bad situation I realise but any advice in this matter would be greatly appreciated.

Basically the employer here is basing their allegations on mere speculation alone. Speculation and/or assumption is not enough to pursue disciplinary action let along to dismiss anyone. Get the statement form the client and send a photocopy of said statement to the former employer along with sending a letter making it clear that you will not tolerate there actions, as you believe that their actions are based on misguided speculation and assumption alone. ALso make it clear that as an employee, you had permission from the data controller to access the details of clients that were assigned to you by them, especially when clients contacted you.

I suspect the former employer did not follow correct procedures for investigating and disciplinary procedures as per set out in ACAS code of conduct on grievance and disciplinary procedures - Did they inform you of your rights to be accompanied to the investigatory meeting along with the disciplinary meetings, by a colleague or a union representative? Did they provide you with any evidence other than speculative witness statements to support their claim your accessed the data to better your own interests? I doubt they did as their probably is no such evidence, given what you have stated as being the events that occurred.

Heres a link to details on references, this is of particular interest to you if you work in a regulated industry such as financial services - Which Leclerc will be able to advise more on if it is the case that you do work in a regulated industry and your former employer is part of that industry. https://www.gov.uk/work-reference

[leclerc]

Re: Gross Misconduct After Contract Ended

Teaboy2: ACAS has a code of PRACTICE and not conduct. Furthermore you have not answered the issue over the fact that his notice period expired and he left the company. The company are following the Code of Practice to a point, however, the fact that he has left the job as his notice has expired is important since you cannot discipline a former member of staff when they have left the company.

I kinda agree with you to a degree on the reference because he left prior to any knowledge of the investigation but they can refuse to give a reference which is as good as not giving a reference at all.

[Inca]

Re: Gross Misconduct After Contract Ended

Leclerc....you know I'm a 'trying to learn' novice on stuff like this but questions (If I may).....

Would OP be 'dropping a goolie' if he pre empted any/no reference by approaching his new employer and stating his case?
I ask this because if/when this does come out surely it puts OP in a better position to argue his case rather than new employer thinking he's been decieved.

How long did the letter sit at the Post Office (does this make any difference)

Can the previous employer change the OP's record to 'dismissed'?

Have any DPA's been breached by OP's actions at previous employers?

Im just interested

[enquirer]

Re: Gross Misconduct After Contract Ended

I can see that once the OP has tendered his resignation, a dishonest employer might try to institute a fast track dismissal in order to try and avoid any obligations with regard to holiday pay and so on.

However, given that the employee has left, what exactly is the employer trying to achieve? Why are they investing so much time and money in what at first glance appears to be a pointless exercise?

[Inca]

Re: Gross Misconduct After Contract Ended

To my untrained eye enquirer,,could the original employer be 'looking' in to ways OP breached DPA by doing the searches he alludes to before leaving company? Therefore looking for 'criminal' activity during his employment??

[teaboy2]

Re: Gross Misconduct After Contract Ended

Teaboy2: ACAS has a code of PRACTICE and not conduct. Furthermore you have not answered the issue over the fact that his notice period expired and he left the company. The company are following the Code of Practice to a point, however, the fact that he has left the job as his notice has expired is important since you cannot discipline a former member of staff when they have left the company.

I kinda agree with you to a degree on the reference because he left prior to any knowledge of the investigation but they can refuse to give a reference which is as good as not giving a reference at all.

Yeah i know i always get muddled with the words conduct and practice! Search either on Google and it comes up with he same results.

I did answer his questions Leclerc - There was four of them and i answered all four. The outcome of the disciplinary would be diminis as they had already agreed to terminate the OP's employment by mutual consent by accepting the OP's resignation. I made this clear by pointing out that any reference would have have to be factual i.e. state employment terminated mutually on xx/xx/xx or employee resigned, and not state that employed resigned during disciplinary procedures, which would be untrue. The made concern off the OP's is the content of any reference is it not?

Is the employer following the correct disciplinary procedure? Just because it may look on the face of it that they are, it doesn't mean that is the case. Did the OP say whether the letters inviting him to meetings informed him of his right to be accompanied? Nope! The fact one letter asking him to attend a subsequent disciplinary meeting didn't have enough postage paid on it, leading it to be held at the post office. And the fact the next letter, providing an alternative date due to the OP not attending the original disciplinary as a result of not receiving the first letter, did not contained the witness statements or evidence against the OP as per the letter that was held by the post office. Would suggest they may not be following procedures correctly, its irrelevant as to whether it was an honest mistake our not, they still should have included witness statements and evidence they intend to rely on in the second letter to ensure the OP had all the information he/she needed to be able to prepare a defense against the allegations. Failure to do so is negligent practice and and therefore a failure to follow correct procedure. Has the op copies of minutes from any of the meetings to review and sign in regards to accuracy (and where they accurate?) of what was said in the meetings? We simply do not know until the OP tells us.

As for references, whilst employers in unregulated industries have discretion as to whether they provide a reference or not, employers in regulated industries have no option but to provide references by law. In either case, where a reference is provided, their is a legal duty on the employer to provide and accurate and factual reference. Otherwise they are at risk of being sued for libel and damages coursed to the former employee as a direct result of inaccurate or untrue/non-factual reference.

Bubbafett

Can i ask what the original allegation that led to the employer inviting you to an investigatory meeting was? As after reading your post again it sounds like your main concerns were in addition to another allegation that was originally led to the investigation.

[teaboy2]

Re: Gross Misconduct After Contract Ended

To my untrained eye enquirer,,could the original employer be 'looking' in to ways OP breached DPA by doing the searches he alludes to before leaving company? Therefore looking for 'criminal' activity during his employment??

That's what i suspect to be honest. Inca, as it sounds strange how all this only came to the front 2 weeks after the OP handed in their notice, and even more so, when its regarding the data or a client seeking romantic relations with the OP (Unbeknown to the OP at the time, from what the OP has stated), hence the calls to make appointments and reason for the OP accessing the clients data. Which they would probably have to do for security reasons anyway, to ensure the person on the phone is the data subject.

[Inca]

Re: Gross Misconduct After Contract Ended

So,,,the miliion dollar questions are (to me)

Is the OP still involved with the client?
Has the client removed her business from OP's original employer?

(So even if I had attended this reconvened meeting I would have done so without all the knowledge I needed)...that's not strictly true OP,,as you would have collected original letter from the PO which contained everything you needed to know,,or are you saying you DIDN'T collect the letter??

[enquirer]

Re: Gross Misconduct After Contract Ended

Has the client removed her business from OP's original employer?

I also suspect that it may have something to do with poaching clients.

[Inca]

Re: Gross Misconduct After Contract Ended

I also suspect that it may have something to do with poaching clients.

Hence the ex-employers ongoing interests...got it now enquirer Thankyou

[teaboy2]

Re: Gross Misconduct After Contract Ended

I also suspect that it may have something to do with poaching clients.

Also hence why i told the OP to get a statement from the client confirming her actions were an attempt by her to pursue the OP romantically and the OP was not aware of this at the time. Which would serve to confirm that their suspicions are unfounded and that the OP was merely the victim of unprofessional conduct and romantic interest off the client, whose data is at the center of all this.

[CleverClogs]

Re: Gross Misconduct After Contract Ended

Also hence why i told the OP to get a statement from the client confirming her actions were an attempt by her to pursue the OP romantically and the OP was not aware of this at the time. Which would serve to confirm that their suspicions are unfounded and that the OP was merely the victim of unprofessional conduct and romantic interest off the client, whose data is at the center of all this.

Perhaps the OP has a bigger willy than his former manager, who hitherto thought he was "in with a chance"?

[BubbaFett]

Re: Gross Misconduct After Contract Ended

Resolved