Signed Off Sick / Gross Misconduct

[ianwright81]

I have a member of my team that is responsible for monitoring our company emails. Unfortunately we have recently discovered he has been deleting very important emails that require business critical responses. For example, our Amazon business accounts for 70% of all sales and he has been deleting emails from Amazon threatening to suspend our account or suspend our ability to send stock to Amazon warehouses, due to repeated errors this employee had also made in managing the Amazon account. We have also had emails warning us that our own company website checkout was out of date and that we will shortly no longer be able to take credit or debit card payments if action isn't taken to upgrade it - all deleted. There is also several other issues of pure negligence and lack of care.

The very day that we planned to discuss this, the member of staff was signed off with anxiety. He has now returned (working from home initially) and hopefully returning to work next week. All in all, the employee has been away from work for 7 weeks, enough time to notice that he really hasn't been doing his job well and now other team members have come forward to raise concerns about his work rate.

We created a questionnaire for all staff to see if they wanted or felt they needed any training and this employee felt that he didn't need any training.

We now feel the employee is a liability in this role and his position in the company is a risk to losing our Amazon account, which would be the end of our business.

We are however worried about proceeding with gross misconduct and negligence given he has been signed off with anxiety recently (to which he says is not related to work and that he is fit to be at work). The employee also refused an Occupational Health Assessment.

Any advice on how to proceed would be welcome.

Thank you.

 

[MikeJ]

How long has he been with you? If it's less than 2 years, give him his notice, pay his holiday pay, get rid of him...

 

[ianwright81]

7 years now.

 

[Newchodge]

7 years now.

Follow your disciplinary procedure.

 

[DavidWH]

Follow your disciplinary procedure.

This link seems may be of use to the OP.

I always understood Gross Misconduct would result in immediate dismissal? Would the neglect to respond to the email constitute Gross Misconduct, as it's damaging to their business. More so than if they took some post-it notes home, which would?

The reason I ask, a member of staff who works with my wife has been doing similar and opted for the sickness route, which highlighted more shortcuts, and not following SOP's.

It has gone mostly unnoticed for a number of years (poor management) with informal verbal meetings, but never followed up, or escalated through the correct disciplinary process.

I suspect they've made a rod for their own back, trying to manage it and not follow the companies disciplinary procedure - Not that I think they'll learn from it!

 

[JEREMY HAWKE]

I think you should kick him out but maybe get an Employment law advisor to help you
I know one @Newchodge

 

[MBE2017]

You need to follow your procedures, and check with a specialist employment person first since things change so often, you need to ensure things are done correctly. Whilst things seem very bad, you should conduct a proper investigation, and also consider his responses before making any final decisions.

He could for instance argue such actions were as a result of his anxiety and mental health issues, he might raise some occasions when he might have felt he reached out for help but was ignored, it could become a can of worms if you are not careful.

 

[ianwright81]

There have been issues over the years with him and have been documented in appraisal but it has always been informal discussions as opposed to warnings and disciplines.

Right now I have no confidence in him handling business critical issues and I can't see a way back from this. Being off for so long has highlighted further that he wasn't doing a great deal and delegated most jobs. Even this week from home, specific jobs I have given to him, he has tried to pass off to other team members.

All motivation seems to be missing from him. We have discussed and documented his mental health and anxiety issue and he states it is not work related and recently completed an accessment stating that he has no concerns, stresses or worries at work. He also stated that no training or development issues are needed. Despite that, for his well being and for our protection we wanted to pay for an Occupational health assessment, but he refused.

I will get some advice.... but I just wondered if anyone had seen anything like this or had to deal with it or how you would approach it.

I appreciate the replies. Right now, this is very stressful for me, as we have never had any issues like this.

 

[The Byre]

About three years ago, we discovered that one person was trying to cream off customers and bypass the company. It came to light after a customer came to the person in charge of that part of the business and asked her if it was done with her knowledge and if it was OK.

She came steaming into the office, mad as a wet hen and almost speechless with anger.

The offender got the instant bum's-rush!

If in doubt about giving this idiot the instant bum's-rush, talk to @Newchodge and let Cyndy talk you through any complications that may arise. But for an employee to deliberately sabotage a business by covering for their mistakes sounds like grounds for instant dismissal to me.

You could tell him in the form of a riddle - "What have you got in common with Walt Disney, J K Rowling, Oprah Winfrey, Jerry Seinfeld, Thomas Edison, Boris Johnson and Steve Jobs?"

 

[Paul Norman]

Hopefully, you have a disciplinary procedure.

But in any case, I would not be allowing this person back in the building, nor access to any of our IT stuff. With immediate effect.

If you follow good procedure, you can remove this person fairly swiftly, if not immediately. And you should.

 

[Lucan Unlordly]

You could tell him in the form of a riddle - "What have you got in common with Walt Disney, J K Rowling, Oprah Winfrey, Jerry Seinfeld, Thomas Edison, Boris Johnson and Steve Jobs?"

I'm intrigued so will have a stab at the answer...
None of them have ever watched Everton FC play at home?

 

[WaveJumper]

I think I would also be asking myself why after seven years if having regular performance reviews why this has not been picked up before. It might be worth checking the systems in place to monitor staff performance are adequate are any other staff falling under the "radar"

 

[Mr D]

There have been issues over the years with him and have been documented in appraisal but it has always been informal discussions as opposed to warnings and disciplines.

Right now I have no confidence in him handling business critical issues and I can't see a way back from this. Being off for so long has highlighted further that he wasn't doing a great deal and delegated most jobs. Even this week from home, specific jobs I have given to him, he has tried to pass off to other team members.

All motivation seems to be missing from him. We have discussed and documented his mental health and anxiety issue and he states it is not work related and recently completed an accessment stating that he has no concerns, stresses or worries at work. He also stated that no training or development issues are needed. Despite that, for his well being and for our protection we wanted to pay for an Occupational health assessment, but he refused.

I will get some advice.... but I just wondered if anyone had seen anything like this or had to deal with it or how you would approach it.

I appreciate the replies. Right now, this is very stressful for me, as we have never had any issues like this.

Yeah, you will want to tighten up those informal discussions and appraisals.
They don't appear to have worked well with this staff member.

I don't like appraisals - they can be a considerable drain on a company. However they are also a method of raising issues, training, skills, lack of skills, experience and ambition.
And useful as staff end up with different managers, different jobs within an organisation.

The method I use has staff with multiple objectives and having to evidence them throughout the year - we have half yearly reviews so its not just an end of year scramble. And as things change what was put in place at start of year may not be as relevant halfway through.

 

[Chris Ashdown]

Why the need to delegate such things as deleting emails to another person in the first place, when you could automatically direct them to the relevant person directly

Any problems should be that the person is called in to a meeting, with a written disciplinary procedure undertaken with written warnings given as required

 

[Employment Law Clinic]

We are however worried about proceeding with gross misconduct and negligence given he has been signed off with anxiety recently (to which he says is not related to work and that he is fit to be at work). The employee also refused an Occupational Health Assessment.

@ianwright81 Stop worrying about minor issues you don’t understand: if you’re getting advice anyway, you will be told a few days/weeks off sick with Covid, a flu, a broken leg, or anxiety, all are equally irrelevant to the serious matters you have to deal with. Unless he is disabled due to anxiety, and you are reasonably aware of this, it's not an issue - don't let it cloud your decisions.


You should be giving him notice now of a disciplinary hearing, providing details of what is alleged he has done, and any evidence you intend to rely on when a decision will ultimately be taken (in the ideal world, you will have different managers or directors, or someone superior handling each stage of a disciplinary, so worth remembering that now, and avoiding casual chat among yourselves).



Unless he was deliberately deleting these messages to sabotage the company, this sounds more like serious misconduct (serious inability to do the job), rather than gross misconduct, but that’s from very limited details.




Karl Limpert

 

[Employment Law Clinic]

I always understood Gross Misconduct would result in immediate dismissal?

Gross misconduct should result in nothing, except the appropriate manager contemplating the whole range of responses reasonably open to them.



The range of responses would always include dismissal, with or without notice; but would equally include a warning, or no formal action at all (exceptional, but feasible).




Karl Limpert

 

[NickGrogan]

I'd be looking at the person that has been managing him and the person undertaking the staff reviews. Both have some explaining to do.

 

[Bob Morgan]

Has he gone, yet?

 

[Nexilis HR Solutions]

Hi,

Don't worry you can continue proceeding with gross misconduct. I am assuming you have a policy document around this. I am happy to take a look at the document for better guidance on the matter. I would pursue this on the grounds of reputational damage and loss of revenue due to his behaviour. First though, you are going to have to do a fact find into the matter where you present evidence to the employee and he has a right of response to the evidence presented. You cannot have a disciplinary meeting without this. The burden of proof lies with you as the employer to prove he did this rather than for the employee to prove they didn't, if that makes sense. Sometimes information comes up in the fact find that may be mitigation to the behaviour which may change the direction and sanctions that may be imposed.

Given he has been signed off with anxiety, states it is non-work related and won't attend an OCC health, then this has zero impact on managing his conduct and behaviour. The only caution I would advise is that whatever the cause of the anxiety was, whether this may have had an impact on his duties within the workplace.

Happy to talk you through this in more detail if you need.

 

[Paul FilmMaker]

The short answer is yes, you can start the disciplinary process and fire them while they're on sick leave. The litmus test is if you can demonstrate you have acted reasonably given the circumstances.

Employees can still attend disciplinary meetings while on sick leave and you have to make reasonable adjustments to ensure this happens.

The key element is the thing that all the employment experts on here are saying in that it's incredibly important to in line with the company's processes (as well as documenting everything). Where employers get fined and lose is where they deviate from their processes or their processes and policies do not conform with UK law.

So if I were in your position, I'd talk to an employment law expert to ensure all the processes were in place and then start the disciplinary process after consulting with an employment expert.

 

[Jamie Goodwin]

You cannot proceed with disciplinary action whilst they are off sick - you could have a conversation with them to establish when they are due to return? Have welfare calls - and follow the correct process. Do you think the colleague is staying signed off until they find a new job? Most do - Try and negotiate a mutual exit deal if they have no intentions of returning - it is having an impact to your business.
If they do decide to return, then you do have the option to suspend them and hold an investigation meeting on their first day back BUT stipulate that you can with hold sick pay whilst under investigation. You cannot dismiss at an investigation meeting - it’s important you follow process so that you don’t open yourself up to an employment tribunal case.

 

[Newchodge]

You cannot proceed with disciplinary action whilst they are off sick - you could have a conversation with them to establish when they are due to return? Have welfare calls - and follow the correct process. Do you think the colleague is staying signed off until they find a new job? Most do - Try and negotiate a mutual exit deal if they have no intentions of returning - it is having an impact to your business.
If they do decide to return, then you do have the option to suspend them and hold an investigation meeting on their first day back BUT stipulate that you can with hold sick pay whilst under investigation. You cannot dismiss at an investigation meeting - it’s important you follow process so that you don’t open yourself up to an employment tribunal case.

You can proceed with a disciplinary procedure during sockness absence if you are careful about the procedure followed. On what grounds can you suspend sick pay whilst under investigation?