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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I have been sacked on the spot, for gross misconduct, I charge

Resolved Question:

I have been sacked on the spot, for gross misconduct, I charge I definitely contest. No hearings, no investigation results offered to me, just instant, with an offer of an appeal. is this legal?
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 did you work there for?

Customer:

About 5yrs

Ben Jones :

ok let me get my response ready please

Ben Jones :

The dismissal is very likely to be unfair, at least procedurally. 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:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


 


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 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. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.


 


If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If 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.


 

Customer:

The company said they had done a full investigation, but they never told me an investigation was happening, they never informed me about any complaint, I have not seen the accusation or any info from the so called investigation? the incident happened on the 19/03, if the incident was deemed so serious as to warrant instant dismissal, why did I continue to work up till the 3/04?

Customer:

I didn't even know a complaint was made against me, until the day I was sacked. just called to office and told, were not going to beat about the bush, your employment with us has been terminated immediately?

Ben Jones :

there is clearly a total lack of following a fair procedure. You can also refer to the ACAS Code of Conduct which states the steps an employer is expected to follow to ensure the fairness of a dismissal - it is basically more or less as explained above but in more detail and you can refer the employer to that:

www.acas.org.uk/media/pdf/k/b/Acas_Code_of_Practice_1_on_disciplinary_and_grievance_procedures-accessible-version-Jul-2012.pdf

Customer:

Thank you. can I just confirm with you, that before I was dismissed on spot, I would have had the legal rights to see the evidence against me to make them come to their decision and should I have been informed that an investigation was going on? I have not had an opportunity to clarify what the complaint was or to give my version of events? also, what should I say in the appeal, that I believe it was not followed procedural wise and I should of been made aware of the complaints?

Ben Jones :

yes correct, you should have also been taken through a formal disciplinary hearing and been given the chance to defend yourself and also to be accompanied. The appeal should focus on two points - the procedure itself, or the lack of a procedure, and also the reasons for the dismissal if you believe that they are not justified

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks

Customer:

Yes thanks, XXXXX XXXXX much the wiser now.

Ben Jones :

Great, you are most welcome

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