Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is Ben and it is my pleasure to assist you with your question today. What would you like to know about this?
You have not asked a quesiton in relation to it
ok but what specific questions do you have about your situation, what exactly do you want me to advise you about - just saying you have a disciplinary to attend and want me to advise on that is a rather general query
so if you can please narrow your queries down then I can provide a more appropriate advice for your needs
ok I understood that from your original query but you have still not told me what queries you have in relation to all of this? Please be more specific about what you actually wish to know about this situaiton
ok let me get my advice ready for you
Alleged misconduct, as in this case, is a common reason for taking disciplinary action. It could be due to a single act of serious misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
I will discuss these requirements in more detail below:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and what resources are available to the employer. 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 provides evidence that misconduct may have occurred, 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 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, then they can go ahead and formally sanction the employee. When deciding on the appropriate penalty, 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 was one of gross misconduct (something so serious that it justifies instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning. If any further misconduct occurs in the future, only then should dismissal be considered.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
If there are any doubts about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.