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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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A friend of mine was summarily fired from work after his boss

Customer Question

A friend of mine was summarily fired from work after his boss found him on facebook during office hours. She was a new boss and her predecessor used to let his team have a bit of personal use of computers during work. They don't have an IT policy but just after she fired him she sent an email around saying that they were now operating on a no private use policy which would be strictly enforced going forward. What options does my friend have?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know how long did he work there for?
Customer: replied 3 years ago.

About 3 years.

Expert:  Ben Jones replied 3 years ago.
Was he taken through a disciplinary procedure or was he just fired on the spot?
Customer: replied 3 years ago.

Literally just fired on the spot. Also what difference does his length of employment make?

Expert:  Ben Jones replied 3 years ago.
His length of service dictates his employment rights. I will explain how in my main advice. One more question - when did the dismissal take place?
Customer: replied 3 years ago.

Last wednesday.

Expert:  Ben Jones replied 3 years ago.
From the information I have it does appear that your friend has been unfairly dismissed.

Whilst misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996, in order to justify that such a dismissal was fair, the law requires that the employer:
• Carries out a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.

2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.

3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.

4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered.

In this case no investigation appears to have taken place, there was no disciplinary heating or appeal and the reason for dismissal appears harsh, especially when no specific policy was in place to say this was not allowed.

If he wants to take this matter further he can make a claim for unfair dismissal in the employment tribunal and he has 3 months from date of dismissal to do so.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44874
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

For Ben Jones only


 


Ben - I just reread your answer, and though you mentioned that you would address what bearing his length of service would have I don't see it mentioned. Could you tell me why it makes a difference?


 


Thanks

Expert:  Ben Jones replied 3 years ago.
Hi, yes sorry if this was unclear - employees who have more than a year's service (now changed to two years for those employed since 6 April 2012) will be protected against unfair dismissal. Those who do not have the minimum required service will not be protected which means the employer can dismiss them quite easily. If your friend has 3 years service then this is not really relevant as he definitely has the required service

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