Sacked

A question about : Sacked

Hi all . This may be the wrong section of the forum to post but here goes.
My son was recently sacked for gross misconduct from his employment, with immediate effect and no notice given. The reason stated by his employer were that he'd been late on several occasions ( never previously given any official warnings about this) and also being asleep at his computer, yes I know totally unexceptable , but he wasn't feeling very well at the time. He has appealed against his dismissal on the grounds of gross misconduct , based on his contract of employment stating the company's dicaplinary procedure states that both lateness and falling asleep at your work station are described as misconduct ? And therefor he should of reserved a months notice by the company as set out in their contract of employment. However despite informing hr of this in his appeal, they have still excepted thier diccision as being correct.
He hasn't been as the firm for the two years required for him to appeal unfair dismissal, and going down the employment tribunal route I believe costs around Ј1200 or so.
So my question is would it be possible for this to be heard at a small claims court? To try to make the company pay his notice petiod

Best answers:

• As you say he's not been employed long enough to claim unfair dismissal.
  The distinction between misconduct (where notice is due) and gross misconduct (no notice) could however be the subject of a wrongful dismissal claim which does not need two years employment.
  Although a count court can deal with straightforward non payment of wages etc it cannot rule on an employment issue so you would need to check carefully if the matter fell into their jurisdiction.
  Another member who posts here regularly will know the answer to that.
• Falling asleep at work and being late multiple times and you're looking to take aim at the company!
  I know what I'd be doing if it was son....
• The contract specifically mentions falling asleep at your desk in the contract ? Wow !!
  Ultimately under two years a company don't have to give a reason so you could go to a tribunal and them decide that even though the company didn't follow their own internal policies they didn't act unlawfully under employment law and uphold (in fact that is what I would expect them to do tbh). Small claims could hear it theoretically but they tend to be very real world and may decide that falling asleep and still expecting to be paid is taking the michael - a lot of magistrates are either small business owners or retired from same so might not give your sleepy boy much sympathy.
• I'd have to say he is on a hiding to nothing. Being late once is misconduct - repeatedly being late and falling asleep at work could constitute gross misconduct. Certainly the onus is on the employer to prove that a reasonable employer would consider this gross misconduct - but the ONLY court that can determine that would be an employment tribunal. Since nobody else has jurisdiction to rule on this matter, and without such a ruling then the employers decision stands as fact, then no other court can interpret the contract to mean that the employer owes him any pay for notice. The cost of making such a claim would seem to be out of proportion with anything he could possibly gain from then getting notice pay.
• Thanks all for the replys. Seems small claims would defiantly be a no go then ? As for the lateness and falling asleep , I would of thought it reasonable to expect warnings to be given? And the falling asleep as I said before my son did explain he was feeling unwell. I know it sounds like I'm pointlessly defending my sons actions,but you would expect an employer to adhere to it's own disaplinary procedure
• Are you sure your son was not given a verbal warning(s)? Perhaps he is being economical with the truth?
  It would seem strange if he was not reprimanded for persistent lateness and when he was awoken from his slumber.
• He fell asleep and was late to work. I wouldn't want somebody in my team who did this. Gross misconduct is not defined and can mean a plethora of different things.
• A letter to the management/owner taking responsibility for his actions and apologising for the impact of those actions would be a start...I think the best he can hope for from this is some sort of agreement that they wont kill his chances with a new employer if they seek independent references.
  Call me old fashioned but...trying to hang the employer for owed wages because they made a technical mistake in the process of dealing with unacceptable behaviour that is not being denied, seems pedantic in the extreme...