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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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i work in a private nursery in scotland, i was pulled into

Resolved Question:

i work in a private nursery in scotland, i was pulled into the office by our group manager on thursday the 20th of feb and was told there was an allegation about me swearing in a playroom to which i said i wasnt aware of, i was then informed there was to be investigations and i would be facing a disciplinery hearing. on thursday 27th feb i was called in to the office and was told i was suspended on full pay as there had been other allegations against me, i asked what i had done and who i was alleged to have swore at the previous week but was told nothing. i then received a recorded delivery letter with statements sayin they were considering taking disciplinery action against me and there was allegations of me using foul language, bullying a colleague and breach of confidence. my employers had questioned a third of the staff team regarding this, i found it very upsetting that i was accused of bullying as this is definately not my nature, however the staff member of which it was aimed at was the same staff member i had allegedly swore at and on another occasion had given a two fingered gesture at behind a closed door, there is history between myself and the staff member of which our group manager was aware from april last year when i was hassled in the street by the staff members mum and she openly told me she had pointed me out in photos to her son and she had a large family in the area, i was very intimidated and had approached my group manager i would involve the police if this didnt stop. on wed 5th march i emailed my resignation along with a statement of all the history between myself and other staff member and a few other work practice issues. i received a letter on friday 7th march sayin that due to some of the statements i made they werent happy to accept my resignation and invited me to a greivance meeting. i feel so sick about everything and i dont know who to turn too or where i can get someone to support me my employers have told me it has to be a work colleague or a trade union official. i really dont know what to do please advise
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?
Customer:

10 years in sept

Customer:

the nursery changed hands in 2011

Customer:

i am the last exisiting staff member who has been there since in opened in 2003

Customer:

oops 2004

Customer:

will be on tomorrow morning to communicate with you further

Ben Jones :

Hi, sorry I was offline by the time you had replied earlier. If you have decided to resign, the employer has no choice over whether to accept your resignation or not and as soon as you have submitted it, your notice period automatically starts to run and your employment would legally terminate once the notice period has come to an end. An employer simply has no say on whether a resignation is accepted or not.


 


However, until your notice period runs out you will still be an employee of the company and subject to their usual rules and procedures. If the employer wants to treat your complaints and resignation as a grievance they could ask you to attend a formal grievance hearing to discuss the matters and it is true that you may only be accompanied by a trade union rep or a colleague. However, if you do not want the employer to treat this as a grievance you can ask the not to, but they can still ask you to provide evidence as part of an investigation into this issue.


 


In terms of taking disciplinary action against you, in order to justify that such action on grounds of misconduct was fair, the law requires that the employer:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure; and

  • Shows they had reasonable grounds to believe the employee was guilty.


 


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. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.


 


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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.


 


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.


 


If you are forced to resign instead, the same rights exist, where you an claim within 3 months, but you will instead be claiming for constructive dismissal.

Customer:

oh i really dont know what to do i did swear under my breath but so does everyone but dont think i deserve this and for her to interview several staff regarding myself and the other colleagues attitude to each other

Customer:

i feel they were prompting the staff

Ben Jones :

if there are allegations made at work, the employer has a duty to investigate these to decide if any further action is necessary - but being investigated is not an indication of guilt and even if you have to attend a disciplinary, you have the chance to defend yourself and appeal any decision taken. So the worst is not guaranteed even in these situations

Customer:

the group manager has this knack of feeling bad about yourself and actually the thought of sitting there in front of her is already making me feel physically sick . when i submitted my resignation i did say that this was in no way an admission of guilt and it was only because she was affecting my health i felt i had to resign

Ben Jones :

resignation is certainly not an indication of guilt, but now that you have resigned you only have two options - try to retract the resignation and see if the employer agrees, return to work and deal with it internally; or proceed with the resignation and consider whether to make a claim for constructive dismissal

Customer:

no i dont want to go back there knowing she grilled a third of the staff tryin to get evidence against me and she was scraping the bottom of the barrel to do this, and did not interview all the immediate colleagues that work in my area, which i mentioned that to her in my statement with my resignation

Ben Jones :

ok so if you are leaving it is the only option you have now - any claim must be made within 3 months of your last day of employment

Customer:

ok Ben thanks for all this information its disheartening that people can treat you like this and make you feel so bad i appreciate your correspondance

Customer:

onwardsand upwards and if i feel strong enough in the next few weeks i will maybe look at taking this further

Ben Jones :

Yes take your time but remember the deadlines are tight. The claim form is here if you need it:

https://www.employmenttribunals.service.gov.uk/employment-tribunals

Customer:

thank you ben

Ben Jones :

you are most welcome, all the best

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