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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I used to work for a large retailer. I feel that I was unfairly

Customer Question

I used to work for a large retailer. I feel that I was unfairly dismissed with a false allegation charge dropped upon myself. I have followed the process, appeal hearing with the company, ACAS early reconciliation process and now looking at taking the matter through to the tribunal. As I am standing for my principle of integrity, and I feel let down by how the company has treated several employees to date including myself.

The above is a short reference to what has occurred thus so far.

The allegation was theft. The theft incident occurred during a staff sale event, where I volunteered my time to assist towards the event. At the end of the night when I presented my bags to be searched by security an extra item to which I did not purchase was in there. An item worth in the sale £10. This was a first and only incident within the company, I have held a clean record throughout my working history. Plus I was in charge of thousands of pounds worth of items and ensuring these were readily available as stock/replacement or other items. To top things up they paid me for the first month I left the company, to which I emailed and asked if I was owed more, their short but sweet reply was: please return the monies to their account. I did so promptly.

I felt the investigation around the incident was incomplete, inconclusive and above all a farce. There are too many holes in what the company say I did. When asked for further evidence they return in email that they no longer have what I asked for. The line of questioning within the both meetings were direct in such I felt as if I was mistreated and regarded as trash.

As I said I am being supported by my parents at this moment in time and seeing the charges to bring the matter to the tribunal I am a little stumped on how to gather the funds. I am actively seeking employment and as it turns out, having little luck with re-employment. (Currently waiting on feedback from several companies I recently interviewed with in the last few days and have some more lined up this week).

I would like to find out if this is worthy to take forward to the tribunal. I have kept all email threads and letters to hand plus retained a copy of the recorded CCTV footage and voice recordings.

Also how do I present the information to a legal representative? Voice recordings transcribed to paper or sent as audio files? All letters have been numbered and set in order of date received. email communications between myself and the company have been tagged.

Please advice on how best to proceed.

Many thanks in advance, and any help in the matter is truly grateful. I will be able to divulge into further detail should anyone request.

Yours Faithfully,

AS
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How long did you work there for?
Ben Jones :

Hello, not sure if you saw my initial query above - how long did you work there for?

JACUSTOMER-rq0yppre- :

Hi Ben, I worked there for 3.5 years - started back in October of 2010.

JACUSTOMER-rq0yppre- :

employment terminated in March and since then been on the Job Market. Applying to roles of relevant skill sets as I left the previous employer with.

JACUSTOMER-rq0yppre- :

I also have the support and backing of previous management whom I closely worked with and up until that moment in time I held a clean record within the company.

Ben Jones :

Hi, thanks for getting back to me. Whilst it is your right to take this to tribunal and claim unfair dismissal if you feel the dismissal was not done fairly, there are certain risks involved with doing so. First of all you will have to pay tribunal fees to pursue this and as they are over £1k, in the event you lose or drop the claim you will not get these back.

In rare circumstances the employer can also pursue costs against you if they warned you not to proceed any further because you have a weak claim but you did so regardless. It is not that common but it can happen so bear that in mind.

You also need to take into account what will happen procedurally when such a claim is made. In an unfair dismissal claim the employer is expected to show that the dismissal was fair and that a fair procedure was followed. If they can do so they can defend the claim and you will lose. So it is not so much for you to prove the dismissal was unfair but for the employer to show that it was fair.

In order to justify that dismissal on grounds of misconduct 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.

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 or evidence that the above requirements have not been satisfied, a claim for unfair dismissal can be made in the employment tribunal. Hope this clarifies your position?

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

JACUSTOMER-rq0yppre- :

Thanks Ben,

JACUSTOMER-rq0yppre- :

Hi Ben, from the points presented about, around the Investigation, disciplinary hearing and the decision, I am going to proceed further with the case, I thank you again.

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