Wrongful dismissal and gross misconduct: an employee guide

If your misconduct appeal has not been upheld and you have already been dismissed for conduct issues, then the chances are that the time to negotiate has already passed.

If you are not guilty of the misconduct you’ve been sacked for, you will probably have to start Acas pre-claim conciliation, proceedings and try and negotiate while at the same time fighting a claim.

It’s possible however that your employer will want to save money on legal fees and they will often make an offer on this basis. So you do have a chance, but the money you receive may not be as much as if you had negotiated at an earlier stage – had that been possible.

Misconduct claims are difficult to win for employees in tribunals. The employer only needs to show that they acted reasonably and that their decision to dismiss for misconduct was within the ‘range of reasonable responses’ open to them in the situation, and they will win the case.

Therefore, if you are accused of misconduct and your employer is threatening dismissal as one of the options open to them, that’s a good time to negotiate.

 

Talking to your employer if you’ve been accused of misconduct

If your employer has not offered a protected conversation , or a without prejudice meeting, you should suggest it. In misconduct cases, it is often better to talk things through with your employer in a without prejudice meeting, rather than commence correspondence.

This is because people have a tendency to defend themselves in correspondence, or to accuse their employer of acting improperly, and in a negotiation where misconduct has been alleged, this is not the way to go about things.

Should I admit I’ve done something wrong?

If you have done something wrong at work then it can help your negotiating cause to admit to it. It is never easy to admit to ourselves that we have done something wrong, messed up or acted improperly, but it may be the only way of negotiating a settlement package.

You don’t necessarily have to agree that what you have done is as serious or as extensive as your employer suggests.

Sometimes an apology and a promise to work hard to make things right would mean that the employer may not even dismiss you at all.

So, if you don’t want to leave and the misconduct you have committed is not something so terrible that it can never be forgiven, contrition and an apology may save your job.

 

How should I close a misconduct negotiation?

So, you should arrange a without prejudice meeting, potentially admit some culpability in what has happened, apologise, but explain that you have taken legal advice and you don’t think it is enough to dismiss you.

Then say that you understand that, in the circumstances, your employer may wish you to leave and, if that’s the case, then you would be willing to consider leaving for a reference, your notice, and a number of months’ salary.

Believe us, your employer will appreciate that approach. They don’t want to go around sacking people and then dealing with the consequences.

They may want you to leave, but they will sincerely appreciate your behaviour in the without prejudice meeting, and will more likely than not engage with you in negotiations for compensation and a settlement agreement.

With a settlement agreement, you will have a reference, your notice pay and a sum of money to see you through to your next job.

The alternative is to fight the case, get dismissed, and then call a solicitor who will tell you that you do not have sufficient prospects of success to win an employment tribunal claim.

Which would you rather have?