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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46806
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been summary dismissed negligence in my performance.

Resolved Question:

I have been summary dismissed for gross negligence in my performance. Prior to this I had a 6 year unblemished work history, and feel that there were significant mitigating factors to warrant an appeal against this dismissal. My father died in November 2013 and for the first 6 months of 2014 I was suffering from a chronic stomach complaint which was finally diagnosed in July 2014. I have also recently (December 2014) been diagnosed with depression and am due to undergo group counselling. It had been noted by colleagues that during 2014 I had become irritable and unsocial and indeed reference was made in my performance review held in September that I got angry quickly. In total I visited either my GP or hospital over a dozen times in 4 months but this was not noticed at work by my line manager, and feel that given the lack of support they have failed in their duty of care. The OH colleague at work even wrote a letter to say that my well being and cognitive function would have been affected, but these mitigating circumstances were not taken into account on the final judgement.
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 :

Were you issued with any prior warnings for your behaviour/actions?

Customer:

No, no prior warnings at all.

Ben Jones :

When were you dismissed?

Customer:

On the 2nd February 2015

Ben Jones :

How do you think your employer could have helped you in the circumstances?

Customer:

I never had a 1-2-1 meeting with my line manager throughout the early part of 2014 even though other colleagues did. I also find it frustrating that even though I had all those appointments nobody noticed in either HR or OH. I seem to have been dismissed due to errors made during that period, when with the best will in the world I was ill.

Ben Jones :

ok thanks let me get my response ready please

Ben Jones :

It appears you have been dismissed for misconduct, accused of gross negligence. 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. It could be a single act of serious misconduct or a series of less serious acts over a period of time.

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

However, you are likely to be able to argue that you were suffering from a disability and that can give you some extra rights. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:



  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)


If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:



  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.


If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination.

If there are any doubts or evidence that the above requirements have not been satisfied, or the employer has failed to make reasonable adjustments so that you were affected in the workplace and eventually dismissed, 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 and/or disability discrimination 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.

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

Customer:

It does to an extent in that they followed all the correct procedures. However, one of the options available to them was unpaid suspension followed by a final written warning, if there were mitigating circumstances. I believe strongly that there were given my health concerns.

Customer:

In all reality I do not want to get my job back as it will be difficult for all parties if I return, but am concerned at the severity of the punishment and also the potential issues I will have about finding future employment when they are asked to provide a reference, which will state that I was dismissed.

Ben Jones :

You do not have to return but you can make it clear that you are likely to take the matter further and perhaps agree on a settlement agreement where you are paid off and in return agree not to claim. You can also agree on a reference as apart of this

Customer:

Taking the matter further would be to a tribunal, so during my appeal I should mention this. Given the details you have provided above re disability then there were certainly no adjustments made in work for me. I just need now to write my appeal stating the reasons why I am appealing. I will try and work in some of the answers you have provided.

Ben Jones :

Great, that should give you some foundations to making a good appeal. Also before you go to tribunal you would be expected to use ACAS to negotiate with the employer over a settlement and that is all free so another opportunity to try and agree on something

Customer:

Thank you, ***** ***** be able to retrieve the information provided by following the answer link in my e-mail or should I copy and paste from here.

Ben Jones :

You have a few options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.
c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time

Customer:

Thank you very much for your help today, I will ensure I leave a positive rating.

Ben Jones :

many thanks, ***** ***** best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46806
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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