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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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On the 23rd April 2014 my daughter was informed that she will

Resolved Question:

On the 23rd April 2014 my daughter was informed that she will be subject to an investigation as a result of allegations made by her manager in regards to
• Intentionally falsifying your TOIL (Time of In Lieu) hours resulting in claiming for hours you have not worked and are not entitled to.
• Intentionally falsifying your clock cards resulting in claiming for hours you have not worked and are not entitled to.
• You have breached Birmingham City Council’s Code of Conduct in respect of the above.
My daughter was allowed to carrying on working for 2 months. She received a letter on 16th May notifying her that an investigation into these allegations will take place under the Disciplinary Stage 1. All my daughter was waiting for was a date of the investigation meeting.
She continued working until she was called into a meeting on the 17th June 2014 by her manager who questioned her about an incident that took place on 4th June 2014 regarding her lunch break.
Summary of Incident
A works colleague had requested my daughter to take her to the bank during the lunch break. As my daughter was off-site on work she phoned the colleague at 12.04 to say that she was on her way. My daughter was held up in traffic and at about 12.40 the colleague phoned to find out where she was and my daughter said she would be there shortly. She arrived at office around 1245 – 1250 the colleague got into the car and they went to the bank and returned straight to office . The colleague had recorded her lunch break from 12.09 to 14.14. My daughter recorded only 30 mins as that is how long it took to take the colleague to the bank and return. On her return the colleague remained in the car park to speak to some courtesy car people, my daughter went straight into work. Two weeks later on the 17th June she was called into the Manager’s office and asked to explain the discrepancy between her lunch break and that of her colleague. She informed the manager that she was not in office at 12.09 and therefore could not comment on the other members lunch break. The manager said that she had seen both my daughter and the member of staff walk into office at about a little after 1O’Clock, my daughter said that this impossible as the other member of staff stayed behind in the car park to speak to the courtesy car people. Manager did not believe her and informed her that she will need to report this to a senior manager
On 18th June 2014 my daughter was called into a meeting by her manager and was advised her that she was being suspended because of the incident that took place on 4th June 2014 and that the manager was clubbing this with the two previous allegations. My daughter asked the Manager if this could be put in writing. The manager said that it would. She received the suspension letter on 24th June 2014 and was surprised to note that the reason for her suspension i.e. Incident on 4th June 2014 was not mentioned, however the other two allegations were.
I believe that the 4th June incident was just a ploy to suspend my daughter for the earlier allegations. If the investigations had been carried out when it should have, my daughter would not have been suspended for the two earlier allegations. However, due the delay in carrying out the investigation, it appears that the manager was looking for incidents to suspend my daughter.
My question : Is it acceptable in law that my daughter was allowed to work for 2 months after allegations were made, which at the time was not considered serious enough to warrant suspension, then two months later the company misleads the my daughter into believing that she is being suspended for a current incident on 4/6/14, when in actual fact it is for something that happened two months ago and also, there is no mention of the actual grounds for suspension (incident of 4th June) in the suspension letter and also in the minutes of the suspension meeting.
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.

Ben Jones :

How long has she worked there for?

Customer:

10+ years

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you

Customer:

Will wait for your response

Ben Jones :

Many thanks for your patience. First of all it is important 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.

So the fact that she was not suspended earlier is somewhat irrelevant – the employer could do that at any point once they believe this is warranted. They could suspend her for one incident, then in the course of the investigation find out other issues and then continue the disciplinary action based on these, rather than the reason used for her suspension. In other words, there is no requirement for the disciplinary to be linked to the reasons for the suspension – the two could be separate.

What matters now is whether she is going to be formally disciplined for something, regardless of whether it was to do with her suspension or not.

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.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thank you for your response. Position has now been clarified.

Ben Jones :

you are welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45306
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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