Interference with Business Relations - gross miscounduct

[W12ANT]

Hello
I have been charged with gross misconduct, if I give you some background information below, I am wondering whether anyone has any thoughts as to where I stand should I be dismissed or disciplined?


The background:
I work for a multinational engineering / design / consultancy. Over the previous 12 months I was “placed at risk” of redundancy, this “at risk” was later withdrawn, I never received answers to the questions I raised in the “declaration of “at risk meeting” with my current employer. In fact I thought this was an unfair act as I had guaranteed work for 3 to 6 months whereas other employees in the organisation who had not as much of a forward looking workload as me were not placed “at risk”.
Subsequently the “at risk” was removed, however no verbal guarantee was available from employer that my position was safe for the foreseeable future, or due to my high level of expertise in one particular field, why I was not considered for any opportunities, and the company have formally stated that the particular area of my expertise is an area they will pursue in earnest in forthcoming years. No other employee based in UK has my level of expertise in the particular field.

As a result of these events last June / July period, I decided to start my own limited company last September. In October I was approached by an old friend who owns a small local engineering firm to undertake some specialised work for them. I asked the question as to whether my current employer had any involvement with the specific project and was told no.

I have been served with a “gross misconduct charge” based on work for a “competitor”. That is, this small engineering firm, my employer states that this small company is a “competitor” to my current company (current employer has over 100 offices worldwide and is ranked in US top 500 companies), the small engineering firm has a dozen (at most) permanent staff. Anyway, I undertook work for my friends company through my own limited company, and did so NOT in my paid employers time, it was undertaken weekends and evenings. It does state in code of conduct you should not work for a competitor, but as stated I in no way envisage that the small firm as a competitor to my current company?

In fact the work was indirectly undertaken for a client of my current employer – whether this could be construed as competition ? Hopefully not, as if we delve into commercial practices my current company would not be able to undertake projects as financially small as the ones the small company could undertake. As far as I was concerned my own limited company did work for another company, not a competitor of my current employer. Also the small engineering firm is in fact a supplier of services to my employer.

Anyway I have had a charge of gross misconduct placed against me . I genuinely did not see the small engineering firm as a competitor to my current employer. I have an outstanding work record and have had no previous warnings.
I was approached by a multinational company last week to undertake some part time work 6 days a month for a project in Algeria, I informed my current employer as to whether it would be possible to have unpaid leave to pursue the project. I stated to my current employer that the project in Algeria had no involvement with my current employer, as far as I or the other potential “part time” employer was concerned. My current company could state that the position was with a potential competitor for international work ??? But I did ask the question as to whether this would be acceptable.

 

[akirk]

From the sound of it you are in breach of your contract - you have done work in your sector during the time employed by your employer and you have a no-compete clause in your contract...

If your employer is paying you they are entitled to expect that you work for them, not someone else...

size of business is irrelevant - it would seem that you are in breach of contract...
you now need to make a decision whether you wish to continue in your current employ or leave - you can not serve two masters.

the starting point of your post seems to be justification for why you did what you should not have done. all the talk about at risk and being withdrawn and no verbal assurances is irrelevant - you are employed / you are paid / you have a contract - if you want to be paid and you sign up to the contract then it is your responsibility to abide by that contract.

time for a tough reality check perhaps?

Alasdair

 

[obscure]

Afraid I agree with Alasdair,
A competitor is a company that works in the same field/industry. The size of the company doesn't really make any difference. You have worked for a competitor while employed and that would certainly seem to put you in breach of your contract.

 

[tony84]

It sounds like your trying to argue it on a technicality (ie were not competitors as they would not undertake such a small job) but it is in the same field.

Im no expert but i do not think you have a leg to stand on personally.

 

[sjbeale]

You mention the code of conduct wording, it depends whether the policy is contractual or not. It also depends if there is a restrictive covenant in your contract or not.

I would prepare your defence for the hearing and take in a companion to take notes then see what they decide. If you have a good work record then they should take that into account for the level of warning.

I am happy to look at paperwork/advise further if need be - you can pm me.

 

[W12ANT]

The only restrictive covenant I am aware of is the you shall not work for a competitor. Therefore does this mean that outside of work hours you are not entitled to undertake any paid work for another company in the same field ? Also the fact that my limited company is in the same field, would they make the case against me having a limited company ? or me working for a small engineering firm who my current paid employer utilize on a sub contract basis? The fact that my current employer utilises the small firm as a sub contractor, does this not indicate that the company as a whole is at fault for using a competitor for their own sub contracts ?
The issue of working in same field outside of paid employment time - is this an issue for "Freedom to work"

 

[W12ANT]

Thank you. I'm surprised really that the potential risk of redundancy etc could not be utilized as extenuating circumstances? You mention pm to you, sorry to act naively but what is pm. Can send you sections on disciplinary from staff handbook and section from code of conduct about not working for a competitor.

 

[LABJES]

The only restrictive covenant I am aware of is the you shall not work for a competitor. Therefore does this mean that outside of work hours you are not entitled to undertake any paid work for another company in the same field ? Also the fact that my limited company is in the same field, would they make the case against me having a limited company ? or me working for a small engineering firm who my current paid employer utilize on a sub contract basis? The fact that my current employer utilises the small firm as a sub contractor, does this not indicate that the company as a whole is at fault for using a competitor for their own sub contracts ?
The issue of working in same field outside of paid employment time - is this an issue for "Freedom to work"

I think you're on a hiding to nothing here. If you are on a disciplinary it's not like school where you can say "but you did this", it will be you under scrutiny and you have to defend your behaviour. Companies do sometimes sub contract or buy from competitors, that is their right to do so under controlled circumstances. Also, the threat of redundancy is no excuse to moonlight, how many employess threaten to leave their jobs every week, employers cannot then treat them poorly and say "well you keep saying you're leaving". The rules are designed to treat everyone fairly. Perhaps try and put yourself in your employers shoes, they have to protect their business and all employees for the long term and you are basically seen as a traitor in the camp, who is potentially putting the business at risk. Sorry but I'm just being honest. Employees constantly bemoan about being treated fairly so why can't employers expect to also be treated fairly and loyally by staff?