Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long had you worked there please?
Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.
When were you dismissed?
Did you agree to work the overtime in quesiton?
the other disciplinaries you refer to - were they both written warning or was it also a final warning?
ok let me get my response ready please
OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you
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. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. The issue you already had 2 final warnings and under the top up procedures even if this only resulted in a warning, you can be dismissed.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Even if you say you did not agree to do the overtime if there is witness evidence to suggest that and there is nothing else the employer can rely on to prove otherwise they can assume you had agreed to it. 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 or evidence that the above requirements have not been satisfied, and the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer. There are however fees involved in that (over £1,000 to take it to a hearing so it can be risk if you lose).
You are welcome