Unfair Dismissal?

[Rinoa]

My boyfriend has been working for a watch repair business for slightly over 2 years now. After less than a year of working there he was promoted to Assistant Manager. The company have always been unfair with their employees - demanding everything from them but giving nothing back, but that's something we rather expected from a retail company.

Anyway, 2 or 3 of the employees have set up their own small online stores and my boyfriend's in particular has been running since August-ish last year. He never kept it a secret from the store owners but did not make a habit of discussing it as it was just an evening hobby to sell off bits of stock he had accumulated from eBay, car boot sales, etc.

On Thursday night one of the store owners contacted my boyfriend and said something had come to his attention which he needed to discuss with him. He expected to meet my boyfriend the next day at the Chester branch (my boyfriend works at the Liverpool branch). He refused point blankly to give a reason for this sudden change of location.

After much stress and worrying the night before my boyfriend went to the Chester branch yesterday only to be told he was now in a disciplinary meeting. The owner then proceeded to accuse his website of being in direct competition with their stores and that he may be facing the sack. The only witnesses offered were the two guys working in the Chester branch that day but as my boyfriend thought they would be biased he opted out. All sorts of questions were asked - one in particular was an accusation of liaising with their ex-Area Manager who now owns his own (very successful) watch company online. This of course is not true. My boyfriend only makes a bit of pocket money from his website to help with bills or maybe a night out once a month.

My boyfriend sells the same generic straps and batteries that his employer uses for repairs - but these items are stock you expect every watch outlet to have. His employer do not advertise the sale of these items - they simply use them for repairs, etc. The employer said they had been monitoring his website for almost 6 months and had sent my boyfriend "hoax emails" - pretending to be a customer and asking if he would do repairs. My boyfriend does not advertise that he does repairs on his website but if asked by email he said he would do a repair. In the entire time he has owned his website he has only done 3 repairs - and made very little profit on them. The employer is insistant he has caught my boyfriend out red-handed although we cannot fathom out how a small unprofessional website is in direct competition to their retail outlets.

My boyfriend was suspended from work for the rest of yesterday afternoon (I presume this must be on full pay?) and must return to Chester today to find out the outcome of the "disciplinary hearing". My boyfriend said he would gladly remove any items from his website they deemed as competition - or even remove the website completely - but the employer said "it had gone too far!".

The company have hit financial difficulties recently and have been closing down branches and getting rid of staff - my feelings are they are trying to find any way they can to sack one of the Liverpool staff to avoid paying redundancy money. Unfortunately it seems they've put my boyfriend in that firing line.



My question is - would any of this be unfair dismissal? It doesn't seem like a just cause. Plus they refused to tell my boyfriend he was attending a disciplinary - or the reason behind one - until he was there! If it was such an urgent matter then surely they should have done this 6 months ago?!

We are both going to visit a Citizens Advice Bureau on Monday whether he is sacked or not. He has always bent over backwards for the company and has never been in any kind of trouble with them before. He is well-liked amongst the staff and probably is the most genuine and polite person they have at the Liverpool branch.

Sorry for the long post - as you can see we are extremely worried. I thank you for your time. Any advice would be much appreciated.

 

[ARP_UOL]

Hi Rinoa,
Does your boyfriend actually have a written contract?
Here in Germany written contracts always have clauses about any kind of commercial activity you do on the side.

In my comapny's case it states that you have to give them something in writing about what you are going to do and you get in writing permission to to do.

My knoweldge of the legal working world in the UK is limited but it sounds like they are looking for ways to cut staff and your boyfriend wlaked into a trap.

Without knowing the exact charges against him I would venture to say that they do have a case against him. At the least they have "due diligence" to investigate and take some minor cuationary measures. Whether that is unfair dismissal or not a UK lawyer would have to step in.

If I were he I would start looking for anyother job. Even if it blows over and he is allowed to stay I don't think the climate is going to be good.

I had a similar situation when I free-lanced. I was asccused of having damaged some equipment but could prove that I hadn't. After that though I was never allowed to work without someone supervising me. Since I wasn't doing anything wrong it seem to infuriate the supervisor more. I left of my own accord.
Andy

 

[Rinoa]

Hi Andy - many thanks for your reply.

Just a quick update: the inevitable happened and the company have now dismissed him with immediate effect. My boyfriend has requested that he has the reasons for his dismissal in writing so we can use it when we seek further action.

To answer your question - his contract does state that employees can not enter into direct competition however it does not specify what direct competition is. He sells watches and watch parts online where as the company does repairs in physical outlets (no business online). Setting him up via email regarding repairs was wrong I believe - how often do you see policemen on the street selling drugs to people to "set them up"...

Anyway, thank you for replying. I'm sorry to hear you were permanently supervised even though you were never in the wrong in the first place. It's shocking how low and disrespectful some employers can be. I'm just so grateful to have an extremely understanding and very fair employer myself!

Kayleigh.


P.S. I refrained from naming companies & websites, etc from my first post as my boyfriend was still "employed" at the time. As that's no longer the case, I'm quite happy to name and shame if anyone is interested and it complies with the forum rules!

 

[Jezclayton]

I wouldn't do anything to exacerbate the situation, since you still have a right to appeal the decision. Certainly don't name and shame.

It may well be that your boyfriend was in breach of his Terms and Conditions, but the way the employer has handled it is appalling. Since they appear to have been aware of the existence of the website for six months, they had ample opportunity to issue a warning. Summary dismissal in this case appears somewhat reckless.

My advice would be to ask the employer to confirm its appeal procedure and to attend such meeting. The CAB will offer suitable advice in this respect.

 

It would appear that the employer has not at this moment in time adhered to a proper process.
You need firstly to lodge an appeal, this will be heard by a different person.

You need to check any household insurances you have to see if there is legal cover/advice that can support you. You could see CAB or call ACAS on 08457 474747

In short, the disciplinary should not at all have been sprung on you, you should have received written notification stating both the allegations/failings with any documents/statements they intended to rely on, you should have been allowed sufficient time to consider the allegations and prepare yourself and the right to be accompanied by a co-worker or suitably experienced union official.

 

[PI Guy]

Your employers should have done it this way.

1. investigated the allegations and given you a chance to answer them in a meeting (investigation Interview).
2. If they felt that the issue was serious and the evidence was enough to go for a disciplinary then they should then suspend on full pay pending a disciplinary meeting. they should then write to you at home giving you 48 hours notice of the disciplinary meeting.
3. At the disciplinary meeting, they then hear all the evidence again and decide what the outcome will be after a short recess.

Oh and i think you have good grounds to appeal for the following reasons;

1. Failure to follow due process
2. Failure to investigate the allegations in good time. they should have investigated this allegations 6 months ago.
3. If they knew about it and did nothing then it might be interpreted as "custom and practice" and therefore they thought it was ok to allow it.

 

[RED ARC]

I agree with the above comments, at a tribunal you will be able to tear this company apart on the grounds that they knew for six months and did nothing, failed to follow due process (the government websites are very clear on disciplinary process) - in fact in addition to unfair dismissal the fact that your other half was initimidated into attending a meeting at a different location that you had no idea the agenda could also count as workplace bullying.

Problem is, that if they are in financial difficulties you may never get any payout anyway. I'd pursue this via a legal expenses helpline as advised above (check all obvious outlets like car, household insurance, travel insurance, medical insurance, even credit cards - many include legal advice helplines) but also spend equal time/effort in getting a new job as you may end up spending a lot of time on this with nothing to show for it.

 

[Cornish Steve]

It's such a shame that your boyfriend and the company he works for didn't discuss this before. After all, if he sells watches, he could have directed all repairs to his daytime employer and everyone wins. IMHO, his mistake was offering to do repairs. He should have referred those enquiries to his daytime employer. Then, everyone would have been happy. As it is, I understand why they have fired him, and I think they have every right. You really can't have employees who are competing against you on the side.

OK, the company has been unduly bureaucratic and impersonal in dealing with this, but that's probably because of all the government bureaucracy they face to fire someone. Personally, I'd recommend that your boyfriend move on and not burn bridges by dragging this out. He's obviously someone with initiative so he should have no problem finding a better company to work for.

In the end, openness and cooperation and far better than secrecy and perceived threat (even though your boyfriend didn't keep his business a secret, he could have defused any potential problems ages ago by suggesting some form of cooperation).

 

[JohnG]

An Employment Tribunal will always apply the test of "reasonableness", ie did both parties behave reasonably?

It would appear from what you say that this employer clearly did not in that they gave your boyfriend no chance at all to state his case nor to be accompanied by someone of his choice at a formal hearing before dismissing him without notice. Even if they had felt he was guilty of gross misconduct (which this isn't) they should not have dismissed him so rapidly.

On the other hand the Tribunal may (or may not) feel your boyfriend breached the terms of his contract by being in competition with them. My view is that your boyfriend should make a formal request for an appeal against his sacking and if this turns out to be not handled properly he should file a Tribunal claim (he must do this within 3 months of the last day of his employment or he will be out of time). It could well be that the employer, once they see he means business and realise what a weak case they have, will offer him a settlement.

He should talk to his local ACAS office (number in phone book) and seek their advice before going much further; they are usually very helpful if they are given all the facts.

 

[Cornish Steve]

Even if they had felt he was guilty of gross misconduct (which this isn't) they should not have dismissed him so rapidly.

Without meaning to tread on the sensitivities of the OP, why is this not gross misconduct? An employee is competing with the company he works for. It doesn't come much more clear-cut than that. (The issue is not selling watches but repairing them; he should have referred those repairs to his employer.)

It's a lesson learned. And as for all the red tape and bureaucracy and tribunals and rules and processes....aargh. How can anyone make money with all this overhead? The boyfriend is a man with initiative, and he's going to succeed in life. Allowing himself to be sucked into the system is just a waste of time and effort and will be demoralising. He should just move on and prove his worth elsewhere.

 

[JohnG]

why is this not gross misconduct?

ACAS defines Gross Misconduct as "acts which are so serious as to justify possible dismissal, such as theft or fraud; physical violence or bullying; deliberately accessing internet sites containing pornographic, offensive or obscene material; serious insubordination; serious incapability at work brought on by alcohol or illegal drugs; a serious breach of health and safety rules; or a serious breach of confidence." (see http://www.acas.org.uk/index.aspx?articleid=922)

I can't see that any of this has occurred here.

We should also ask whether the other employees who allegedly do business on the side have been treated in the same way. If not than the employer is in an even weaker position.

 

[Cornish Steve]

Oh, come on.

In my experience, this is quite a common reason why companies fire employees instantly. You really can't work on the side on something that competes with and steals business from your employer. It's just not on.

Forget the stupid government rules; as a small business owner, would you put up with someone working for you who is quietly stealing your business? Of course not! You'd fire them in an instant.

I suspect, in this case, the boyfriend didn't fully realise what he was doing by offering to do repairs, because it wasn't the main thrust of his business. Still, it was a lapse in judgment and he's now paying for it.

The positive thing here is that he's clearly a man with initiative and a drive to succeed - and he may be better off no longer working for that retail company. There's little doubt that he'll get another job, probably a better one, right away. In the longer term, maybe he'll become a successful entrepreneur and put the other companies out of business.

 

[JohnG]

Oh, come on.

You really can't work on the side on something that competes with and steals business from your employer. It's just not on.

Oh yes Steve, I completely agree with your sentiments. It's just that I'm not convinced this is actually gross misconduct within the definition. But even if it is I still don't believe the employer has acted properly - and more employers lose tribunal cases because they didn't follow procedure than for any other reason.

All this shows why it's so important for our friends to check things out with ACAS before going much further.

 

[Cornish Steve]

Oh yes Steve, I completely agree with your sentiments. It's just that I'm not convinced this is actually gross misconduct within the definition. But even if it is I still don't believe the employer has acted properly - and more employers lose tribunal cases because they didn't follow procedure than for any other reason.

The company does appear to be acting like twerps, but they may have no option because of all the regulations in place. And it's a hollow victory when a tribunal states your employer failed to cross a T on a form because you get yourself a reputation, burn a lot of bridges, and make your life more difficult in the long run.

All this shows why it's so important for our friends to check things out with ACAS before going much further.

My main concern really is that the poor guy will end up dwelling on this for months, feeling resentful, and will lose that spark of initiative that drives him right now. It might be better to just put this behind him and become all the more determined to succeed in life.

John, I'm sorry that sometimes I write things in a rather arrogant way. Clearly you know a lot about this topic, and the OP will undoubtedly learn from that. I do tend to write what I think, which can get me in trouble. Still, we all want what's best for the OP's boyfriend.

 

[JohnG]

John, I'm sorry that sometimes I write things in a rather arrogant way. Clearly you know a lot about this topic, and the OP will undoubtedly learn from that. I do tend to write what I think, which can get me in trouble. Still, we all want what's best for the OP's boyfriend.

Thanks Steve, I'm flattered! The problem we have these days is what you referred to earlier as "stupid government rules". I couldn't agree more with you on that but I'm afraid we're saddled with them and so are the Tribunals.

It's the way things are in the UK at the moment I'm afraid. Very dispiriting at times.

 

I would agree that the disciplinary process is unnecessarily burdoned due to the fact that a sanction cannot be applied without a hearing, this is currently in the process of being changed.

But regardless of that, the final events prior to dismissal shoud quite rightly be done to a procedure, and any employee should be afforded their rights to hopefully avoid unfairness. I'm all against employees manipulating the unfair processes that exist and I do my damndest to ensure they don't, but I am equally against ruthless and morally corrupt employers kicking ordinary folk in the teeth.

But what we have here is a bit of a numpty manager who knows little about procedure and as such may have put the Company in a compromised position. Now, they have the appeal where they could make good for any failing on their part, or let things ride and face potential losses due to a probable claim, which would mean expenses and money thrown away in defending.

Lets be frank, all the manager had to do was write one very very simple letter or even had a simple chat with the employee instead of using a cavalier approach to a very well documented and easy process.

Also, with regards the comments above on gross misconduct, this one I fear may be in a very grey area... Non competition yep, quite rightly so, but then when taking into account that they had no online presence selling could this really be construed as competing, if the employees customer was say 50 miles away could the employer reasonably expect to have got the business of the customer... very grey. Technically it would be competing, but I very much doubt a tribunal would find the employer has been reasonable in the circumstances given.

 

[Lisette]

Perhaps we could focus on giving advice to the OP and boyfriend?

Discipline and dismissal requires two key elements - correct procedure, and reasonable action. Without the full details we cannot comment on whether or not the company has done either and therefore we should focus on advising the OP on how best to assure that the company has covered both.

In terms of advice, you best bet is to go to the CAB as you have indicated you intend. ACAS can also give you free advice and can be good. [Note: ACAS can be a bit patchy sometimes so if you get someone on the phone who does not seem on the ball it can be best to say thanks quickly and phone again in the hope that you get a better person.]

On the face of what you say it does look like the procedure followed is not all it might have been.

Generally the approach to take is to request formal reasons for the dismissal in writing. Then to appeal against the decision stating clearly why you think it unfair and seeking immediate reinstatement with no loss of wages. If this does not work then you have the option of making an Industrial Tribunal claim.

Clearly against all of this, the company can state its case and if they have been procedurally correct and reasonable in their decision this will become clear during the process and you will undoubtedly not wish to pursue the claim.

I have worked in HR for many years both in the UK and globally and can assure you that the employment legislation is quite manageable if as an employer you plan ahead, maintain dialogue, follow a bit of process and make reasonable judgements. High and consistent performance standards are quite easy to demand and dismissals for performance, attendance and misconduct perfectly easy to do when warrant.

 

Perhaps we could focus on giving advice to the OP and boyfriend?

If you would care to check, they have received excellent advice already

 

[Lisette]

yes - and I thanked you - I was trying to gently encourage JohnG and Steve to move their debate elsewhere

 

ahh, didnt see the thanks, all this red mist

 

[Cornish Steve]

yes - and I thanked you - I was trying to gently encourage JohnG and Steve to move their debate elsewhere

And you always put it so graciously. You're right, of course.

 

[Rinoa]

First off, I would like to thank you all for your inputs. There have been some extremely interesting comments and sound advice. We are both very grateful.

To answer John's question:

We should also ask whether the other employees who allegedly do business on the side have been treated in the same way. If not than the employer is in an even weaker position.

One employee made the very successful website I mentioned earlier (which the ex-Area Manager now owns). My boyfriend's employer knew about this website and must have realised there was a real threat of competition from this employee. However they did not sack him - they did quite the opposite. They offered him better working hours & pay, and asked him to improve and manage the company's own website. This employee no longer works for them though - he left of his own accord a few months back.

As for the other employee who owns a website - as far as we know the company do not know anything about it.


Some good news - my boyfriend had an interview for a new job late yesterday afternoon after dropping off several CV's. He explained everything that happened about his previous employment and they were disgusted to hear how he was treated - they also stated that if he does get a job with them there would be absolutely no problem with him keeping his website (this company is also in the watch & jewellery industry)! He's going for the second interview next week - fingers crossed!

I'll let you all know what CAB & ACAS suggest next week - oh and thank you to everyone who mentioned ACAS, I'd never heard of them before!

 

[Jezclayton]

That's really excellent news and let's all hope that your boyfriend gets the job.

As Steve (goldctrsteve) said in an earlier posting, it's so important not to dwell on the past and instead to move move forwards, which your boyfriend seems to have done.

Often an apparent misdemeanor can prove a blessing in disguise.

 

[Rinoa]

I have just realised something... my boyfriend's manager has always been informed about his website and not once said it was direct competition. Would the fact that a member of management knew be of any help to his case?

 

[Cornish Steve]

Personally, I doubt it. Did the website say anything about doing repairs, because this is the likely bone of contention.

BTW, I'm glad to hear your boyfriend has an interview already. I suspected that he'd have no problem getting another job. In a few weeks' time, you might view this whole episode as something positive, not something negative.