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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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hi , I am a night manager with asda on Wednesday morning

Resolved Question:

hi , I am a night manager with asda
on Wednesday morning this week at 03.45am I called the police to attend the store as I wanted them to deal with a boy , who I now know was 14 years old
the security guard had asked for help to remove this lad as he knew him from a previous store he had worked in for shoplifting
the boy was swearing and being verbally abusive to the guard and myself
I told the boy to leave the store or if he did not I would put him out
I grabbed the boy by the back of his neck and he escaped from my grasp
as I went to catch him my section leader jumped in between me and the boy shouting that I should not touch him and that it was assault....he was shouting and swearing at me..
the boy said that I had assaulted him....I called the police who attended I explained what had happened and the wpc I spoke to said they new the boy and that they had dealt with him in the past..the other pc spoke to the boy outside the store
then my section leader appeared still upset at how the situation had been handled by me......this guy does not get on with me very well normally....he gave a statement to the police and took a statement fron a lady checkout colleague who I believe confirmed that I had grabbed the boy

at 05.30am I was taken to the local police station ..put in a cell til 07.30am charged with grabbing the boy by the throat...I did grab him by the back of his neck.....I was photographed,fingerprinted and dna swabs taken
I was the released I returned to my store where I met the store manager and the people manager
the people manager spoke to me om my own where he told me I was suspended and that a letter confirming that would be sent to me at home
I received a text yesterday afternoon asking me to contact him and I am now to attend an investigation this Saturday at 08.00am
I am very worried at how this has all worked out
I did grab the boy by the back of his neck and he escaped from me ...the boy took solace from the shouts of my section leader that by touching the boy I had assaulted him......I believe I used reasonable force in the situation as I have a duty of care to my colleagues and customers
I believed that my guard who was being sworn at and the fact the boy would not leave the store when I asked him was the right call to make to try and physically remove him from the store.
I have been a night manager for almost 7 years with asda and have never been arrested in my life til now
I believe my section leader has taken advantage of this situation due to his dislike of me and that the shouting at me did not help the situation in front of the boy or my checkout colleage
I am scared I may be dismissed ...
can you give me any advice
yours gratefully kevin mccool
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Has the employer accused you of anything in particular?
Customer:

I am under investigation which may result in dismissal

Ben Jones :

The first thing to note that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.


 


During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.


 


On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.


 


If the employer decides to take this further, in order to justify that disciplinary 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.


 

Ben Jones :

Hope this clarifies your position?

Customer:

I understood and knew all of the above...I wanted to know your thoughts on my actions re the incident with the boy instore which resulted in my arrest........I believed I was justified in my actions ....can I justify them ?regards

Ben Jones :

Well what you think may justify them may not necessarily be agreed by the employer. You could have the best evidence available to justify them, and the employer could still refuse to accept these as being good enough to justify them. However, your best argument would be to maintain that you only used reasonable force in the circumstances. Also just because you were arrested does not mean you were guilty. Until you are charged then proven guilty in a court of law you would still be considered innocent in the eyes of the law.


 


Has this answered your query?

Customer:

yes thanks

Ben Jones :

you are welcome, all the best

Customer:

site says you have not finished answer ....i cant rate reply please advise me what to do

Ben Jones :

Apologies for that, there is a bug in the system which we sometimes get and it prevents you from posting your rating. Instead, you can just type your selection on here (e.g. OK, Good, Excellent) then we will process it manually later. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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