Disciplinary hearing for gross misconduct

[teaboy2]

Re: Disciplinary hearing for gross misconduct

Hi Teaboy

Okay, I don't like to go down this route, but I did have a bit of a breakdown a couple of years ago, while I was at the company. I was signed off for two weeks with "stress", although what actually happened was I was feeling incredibly down and suicidal. I went to a CBT course, so that will all be on the doctor's records. That was a low point though that I haven't returned to since and don't expect to. What did you have in mind that I could do with this? I've never considered that I might have anything like "obsessive compulsive disorder".

Well i was actually thinking if you had a history of addiction, such as gambling, or compulsive obsessional disorder. CBT is as you know a talking therapy designed to change the way you think and behave and addresses dysfunctional behavior or maladaptive/adaptive behaviors.

Adatptive behavior is a type of behaviour that is used to adjust to another behaviour or situation. For example, you used the internet, to distract you from another type of behaviors or situations. This is type is often social or personal behavior. So for instance, your behavioral use of the internet is because it helped to distract you form stressful situations - Its was your own personal therapy tool. But the problem is it has become an addiction known as internet addiction disorder (IAD), also know as Problematic internet use (PIU) or compulsive internet use (CIU).

I am of the view your internet usage is connected to you past break down, at its a tool you use to avoid stress and take your mind of things, but it has become a compulsive and problematic issue for you i.e. addiction.

As such i am off the believe your condition, given its relation to your past breakdown due to stress, is a mental health issue and therefore protected characteristic under the equality act 2010 section section 6 as it has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities.

As such you should speak to your doctor about this and why you were dismissed and ask him to confirm if my opinion here is, in his professional opinion, correct in especially given your past breakdown. I am sure he/she will concur. If so, ask him/her to provide you with a letter to such effect.

Then you can write you appeal, point out the above, how its connected to your past break down and as such its a mental health issues protected under the equality act 2010, and instead of disciplining and subsequently dismissing you (which would amount to unfair dismissal) they should have, given your past history or mental health and under their legal obligation of duty of care to employees, sent you to be evaluated by occupational health for assessment and made the necessary reasonable adjustments. Such reasonable adjustments would have simply been to block your internet access to only work related websites or use. Filters can be set up to only allow the viewing of XYZ websites and deny access to all others, during certain times of day and take less then five minutes to set up and can be set up differently per account login or per computer, laptop etc by the system administrator. That would then have prevented you using the internet during working hours for personal use.

Also it may be unfair dismissal, as internet use itself is not a gross misconduct offense, unless used to illegal activity or misused to the extent its used to bully/harrass or descriminate against others - its primaryily a simple misconduct issue. So if you had never recieved any verbal or written warnings or they are no longer valid, as they usually only stay on file for 12months. Then their dismissal of you is likely unfair dismissal on that basis too! They can not class having warned you in an informal chat as being a verbal or written warning!

[leclerc]

Re: Disciplinary hearing for gross misconduct

I am gonna challenge that interpretation under the Equality Act 2010 because the company might(unless they were aware of the mental breakdown) have a defence against this. The ACAS guide to employers seem to suggest this: http://www.acas.org.uk/media/pdf/8/a...-employers.pdf

In terms of internet use, I think we need to know what the contract or employee handbook states under what constitutes GM because I agree with you that it does not in every circumstance mean GM. I am not sure "bikini babes" type websites might be something that would not flag somewhere in most workplaces(see post 3)

Does the job require internet access or simply access to email?(I am covering teaboy's blocking of internet as a reasonable response).

[Jumpshot]

Re: Disciplinary hearing for gross misconduct

Thing is I did stop using the internet once the gross misconduct threat was issued, might be a little hard to argue I couldn't help it.

Yeah, no argument on the inappropriateness, it was a one-time thing that I didn't think anyone would pay attention to. Just a warning to others, no matter how long you've been at a company, don't think you can start taking liberties.

My interpretation of the company handbook is that they CAN treat excessive personal use as gross misconduct "depending on the circumstances". However it also suggests that they will take into account your general record and tenure with the company (3-4 years), and I see no evidence they focused on anything but this one specific act.

[leclerc]

Re: Disciplinary hearing for gross misconduct

Can we clarify if internet use is a requirement for work or merely email useage?(this is following one of the arguments in terms of outcome that Teaboy2 has suggested)

[Tools]

Re: Disciplinary hearing for gross misconduct

To be honest I think the OCD issue is a non starter. Not judging you personally at all but I think on this occasion they have taken your excessive use and content and used it against you. Unfortunately it's a case of being caught bang to rights although gross misconduct and dismissal is in my opinion a little too strong a sanction to impose.

[krypton]

Re: Disciplinary hearing for gross misconduct

Thing is I did stop using the internet once the gross misconduct threat was issued, might be a little hard to argue I couldn't help it.

You were given a verbal warning to not continue doing it as it would be gross misconduct?

You then did and started again within a few days and got caught ?

Then you got fired for misconduct. That's hardly surprising ???

[teaboy2]

Re: Disciplinary hearing for gross misconduct

I am gonna challenge that interpretation under the Equality Act 2010 because the company might(unless they were aware of the mental breakdown) have a defence against this. The ACAS guide to employers seem to suggest this: http://www.acas.org.uk/media/pdf/8/a...-employers.pdf

In terms of internet use, I think we need to know what the contract or employee handbook states under what constitutes GM because I agree with you that it does not in every circumstance mean GM. I am not sure "bikini babes" type websites might be something that would not flag somewhere in most workplaces(see post 3)

Does the job require internet access or simply access to email?(I am covering teaboy's blocking of internet as a reasonable response).

Can we clarify if internet use is a requirement for work or merely email useage?(this is following one of the arguments in terms of outcome that Teaboy2 has suggested)

I agree with you both as its not clear cut and paste. But reasonable response would come in to play. And yes we do need to see what the company hand book says to be certain. Though there's no harm bringing such things up in appeal letter, as the employer may realise their was a better more reasonable course of action to solve the issue, instead of more harsher action of dismissing someone and having to incur the cost of employing a new employee and cost of training them up! As the company may upon reading the appeal letter realise they could have handled it better and even give her the job back, whilst putting her on a written or final warning instead!

To be honest I think the OCD issue is a non starter. Not judging you personally at all but I think on this occasion they have taken your excessive use and content and used it against you. Unfortunately it's a case of being caught bang to rights although gross misconduct and dismissal is in my opinion a little too strong a sanction to impose.

Certainly is in this case (given past stress issues etc), given they could have solved the issue with a more reasonable response and setting up internet filters.

You were given a verbal warning to not continue doing it as it would be gross misconduct?

You then did and started again within a few days and got caught ?

Then you got fired for misconduct. That's hardly surprising ???

The Op never said they were given a verbal warning. And if they had been was the verbal warning given in written form, to confirm a verbal warning had been issued? If not, then its not a verbal warning but an informal discussion that does not count or go on file like any kind of formal warning does.

In fact all the OP said was "My manager told me I had better lay off as it was causing him and me negative attention" - No mention of a threat of gross misconduct, and based on what OP said it was just a merely informal advice given to her by the manager!

[krypton]

Re: Disciplinary hearing for gross misconduct

Thing is I did stop using the internet once the gross misconduct threat was issued, might be a little hard to argue I couldn't help it.

It sounds from this like you were issued a verbal warning first right? As in you were verbally warned what you were doing was gross misconduct?

Yet you kept doing it ?

[teaboy2]

Re: Disciplinary hearing for gross misconduct

It sounds from this like you were issued a verbal warning first right? As in you were verbally warned what you were doing was gross misconduct?

Yet you kept doing it ?

I think he was probably referring to the same informal chat where the manager warned him to cut down on his usage. Though it would certainly help if Jumpshot could clarify if they were given a formal verbal warning in writing!

[Jumpshot]

Re: Disciplinary hearing for gross misconduct

You were given a verbal warning to not continue doing it as it would be gross misconduct?

You then did and started again within a few days and got caught ?

Then you got fired for misconduct. That's hardly surprising ???

Not quite. The verbal warning mentioned nothing about gross misconduct, but just said I should keep my usage to lunchtimes. I failed to fully comply with this and was charged with gross misconduct, at which point I started to fully comply, but by that point it was too late.

And that first conversation was not backed up by anything in writing, nor was it witnessed by anyone. It's only his word that it even happened, although I've agreed that it did happen in the investigatory/disciplinary meetings.

[Jumpshot]

Re: Disciplinary hearing for gross misconduct

Can we clarify if internet use is a requirement for work or merely email useage?(this is following one of the arguments in terms of outcome that Teaboy2 has suggested)

There were times I used internet for work related research, looking up maps or how to create flowcharts or looking at the properties of materials etc, the kind of stuff anyone might use it for. But there was no specific task I was required to use it for.

[Jumpshot]

Re: Disciplinary hearing for gross misconduct

Okay, some relevant sections from the company handbook:

FROM THE DISCIPLINARY AND DISMISSAL PROCEDURE:
"You will not be dismissed for a first breach of discipline except in the case of gross misconduct when the penalty will normally be dismissal without notice and without payment in lieu of notice"
"We will consider the circumstances of your case when deciding whether a disciplinary penalty is appropriate and what form it should take. Factors which might be relevant include, but are not limited to, the extent to which standards have been breached, precedent, your general record, position, length of service and special circumstances that might make it appropriate to adjust the severity of the penalty"
"The following list, which is not intended to be exhaustive, provides examples of offences that are normally regarded as gross misconduct:
...Serious insubordination...
...Misuse of our property or resources (including excessive personal use or inappropriate use of the internet or email facilities contrary to our policy)..." [these were the two headings I was charged with gross misconduct under]

FROM THE EMAIL AND INTERNET USE AND SECURITY POLICY:
"Failure to comply with the rules and conditions set out in this policy may lead to disciplinary action being taken against you. Specific examples of conduct that will be treated as gross misconduct are given in this policy but any serious breach(es) of this policy will also be treated as gross misconduct. Where we reasonably believe that you have committed gross misconduct you will normally be dismissed without notice and without any payment in lieu of notice"
"For the purposes of this policy, inappropriate, offensive, discriminatory, obscene or pornographic material (whether text, jokes, graphics, programmes, data, pictures, video and/or music clips, photographs or other images) is material that we consider (at our absolute discretion) to be racist, sexist or otherwise discriminatory, or which contains nudity or images of a sexual nature or which does or could cause offence to people or material that is illegal or defamatory"
"The company's email system is primarily for business use. You may occasionally use the email system for brief and reasonable personal use provided that it does not interfere with the performance of your duties. Where possible, such use should be limited to your lunch break or outside normal office hours. Excessive personal use may, depending on the circumstances, be treated as gross misconduct"
"The use of web based e-mail systems such Hotmail and Yahoo is forbidden, as is access to chat rooms" (I used Gmail and Hotmail)
"You may not use the internet to download entertainment software or games, or to play games including games against opponents over the internet" (I played online chess)
"Personal use of social media is never permitted during working time or by means of our computers, networks and other IT resources and communications systems" (I used Facebook)

My main mistake here was not to read the company handbook thoroughly. I'd got so used to being there and to certain things being considered acceptable that it caught me off guard when they suddenly became an issue. I'd told not only my manager but the manager above him a year or two into the contract that I didn't have enough work to do, and the manager above mine assured me "well we'll have to find something for you to do, there's always plenty to do in the business". I said absolutely, please do, but never heard anything back. Part of my internet use was over weekends. I was actually given the title of shift supervisor over the weekends, as I was the only one in the office and was responsible for overseeing the warehouse staff. Perhaps that would make them take a dimmer view of any non-compliant behaviour, but there simply wasn't enough work to keep me occupied from 7 till 5 Saturday and Sunday. Some people tend to socialise a lot when they're not busy at work (which leaves no record), I prefer to surf the internet. Again this hadn't been made an issue until now.

I felt from the time that my new manager started (February this year) that him and me were not going to be a good fit. Myself and the previous manager had a good rapport and as I said, he saw that I used the internet when there was no work to do, and I never heard a word about it. This informal conversation with my new manager was the first thing I'd heard about it being an issue, and yeah I should have made sure I was compliant, but never imagined it would be a sacking issue (naivety I guess).

[leclerc]

Re: Disciplinary hearing for gross misconduct

Not quite. The verbal warning mentioned nothing about gross misconduct, but just said I should keep my usage to lunchtimes. I failed to fully comply with this and was charged with gross misconduct, at which point I started to fully comply, but by that point it was too late.

And that first conversation was not backed up by anything in writing, nor was it witnessed by anyone. It's only his word that it even happened, although I've agreed that it did happen in the investigatory/disciplinary meetings.

Just to be clear, when we are saying verbal warning that means that there was a disciplinary meeting in which that came about so from what you have written, I agree with teaboy2 that no formal verbal warning was given since you are given that information in writing.

Ok, the next question is the evidence that was used in YOUR disciplinary. What exactly did they give to you prior to the final disciplinary since that is the only evidence that they are allowed to use?

[Jumpshot]

Re: Disciplinary hearing for gross misconduct

Just to be clear, when we are saying verbal warning that means that there was a disciplinary meeting in which that came about so from what you have written, I agree with teaboy2 that no formal verbal warning was given since you are given that information in writing.

Ok, the next question is the evidence that was used in YOUR disciplinary. What exactly did they give to you prior to the final disciplinary since that is the only evidence that they are allowed to use?

I think you're right that there wasn't a formal verbal warning, in fact in the disciplinary the guy referred to my boss trying to "help me out" by warning me about this issue. So it was tacitly accepted as not formal, and yet it was the basis of the investigatory meeting, and the disciplinary e.g. from the write up of the investigatory:

"Can Jumpshot confirm we had a meeting on Tuesday 4th November about high internet usage?"
"Yes"

"I addressed his high usage of the internet at the meeting (4th of November) and Jumpshot acknowledged this by saying it was because he was bored in the day and "not enough work for 3 of us" can Jumpshot confirm this?
"Yes, I cannot give reasons for it, I am ashamed, and the usage is habitual"

"Jumpshot commented, on the 4th November, he was worried about now being known as the internet bloke/guy by senior management and in so acknowledged his high usage? Can Jumpshot confirm this"
"Yes"

"In the meeting on the 4th or November I told Jumpshot the internet was OK for all staff but only during lunch periods or work related? Please confirm"
"Yes"

It then goes on to talk about my reasons for not following this instruction (I should say I reduced my usage by about 50% over the period after this conversation took place, and yet the guy doing the disciplinary said I showed "complete disregard" for the instruction which I don't think is true).

So I don't know what to make of this first conversation. It was informal at the time, and was tacitly acknowledged to be informal by the guy doing the disciplinary ("your manager was telling you this to help you out"). However, it then became formal because I was asked repeatedly to confirm what had been said, and I did acknowledge all of this as above.

I think their point of view is that because my actions were considered gross misconduct, my manager was doing me a favour by bringing it to my attention rather than them just hitting me with gross misconduct straight off. However, the interpretation of the policy document to me suggests that my usage COULD be considered as such, not that it necessarily is (i.e. if they want the person out, they will interpret it that way).

The evidence given to me was records of my internet usage from a period from 27th October to 8th November.

[teaboy2]

Re: Disciplinary hearing for gross misconduct

Not quite. The verbal warning mentioned nothing about gross misconduct, but just said I should keep my usage to lunchtimes. I failed to fully comply with this and was charged with gross misconduct, at which point I started to fully comply, but by that point it was too late.

And that first conversation was not backed up by anything in writing, nor was it witnessed by anyone. It's only his word that it even happened, although I've agreed that it did happen in the investigatory/disciplinary meetings.

Then as Leclerc has stated there was no verbal warning given.

I think you're right that there wasn't a formal verbal warning, in fact in the disciplinary the guy referred to my boss trying to "help me out" by warning me about this issue. So it was tacitly accepted as not formal, and yet it was the basis of the investigatory meeting, and the disciplinary e.g. from the write up of the investigatory:

"Can Jumpshot confirm we had a meeting on Tuesday 4th November about high internet usage?"
"Yes"

"I addressed his high usage of the internet at the meeting (4th of November) and Jumpshot acknowledged this by saying it was because he was bored in the day and "not enough work for 3 of us" can Jumpshot confirm this?
"Yes, I cannot give reasons for it, I am ashamed, and the usage is habitual"

"Jumpshot commented, on the 4th November, he was worried about now being known as the internet bloke/guy by senior management and in so acknowledged his high usage? Can Jumpshot confirm this"
"Yes"

"In the meeting on the 4th or November I told Jumpshot the internet was OK for all staff but only during lunch periods or work related? Please confirm"
"Yes"

It then goes on to talk about my reasons for not following this instruction (I should say I reduced my usage by about 50% over the period after this conversation took place, and yet the guy doing the disciplinary said I showed "complete disregard" for the instruction which I don't think is true).

So I don't know what to make of this first conversation. It was informal at the time, and was tacitly acknowledged to be informal by the guy doing the disciplinary ("your manager was telling you this to help you out"). However, it then became formal because I was asked repeatedly to confirm what had been said, and I did acknowledge all of this as above.

I think their point of view is that because my actions were considered gross misconduct, my manager was doing me a favour by bringing it to my attention rather than them just hitting me with gross misconduct straight off. However, the interpretation of the policy document to me suggests that my usage COULD be considered as such, not that it necessarily is (i.e. if they want the person out, they will interpret it that way).

The evidence given to me was records of my internet usage from a period from 27th October to 8th November.

Does the dates in the evidence regarding internet usage cover the period before and after you were given informal advice from your manager? Or just the period after your manager spoke to you? If the later, then you need to request copies of internet data use from the a date starting at least a week prior to when the manager spoke to you, and up to the 27 October. As it sounds like the only using your usage from the period after your manager spoke to you, knowing full well if the provided your usage from prior to that, that it would show clear evidence of reduction in internet usage - Which in turn would contradict what the interviewer in the meeting accused you off (as highlighted in RED above).