Hello, my name is ***** ***** it is my pleasure to assist you with your question today. firstly can you tell me how long he has been employed there and has he any other disciplinary issues please.
Hi. He has been employed there for 7 years. He received a written first warning approximately 3 years ago because he had had 3 short occasions of absence in 12 months - I think the total days lost was 5. This is now 'spent'.
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 evening. There is no need to wait and you will receive an email when I have responded. Thank you
Thanks. His hearing is 10.30 tomorrow.
Thanks for your patience, hopefully this finds you in good time before his hearing tomorrow. This is highly unlikely to be fraud. For that to occur there has to be an intentional attempt by the person to try and defraud the employer, for example by falsifying timesheets or other documents for personal gain. This is clearly not the case here, although the employer has just jumped at the label of fraud without too much consideration. Also it does not appear that this is too much of a serious matter to warrant dismissal for gross misconduct – we are talking about a difference of 1 minute on a handful of occasions – hardly anything serious.
In terms of the law on this and the employer’s poition, misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
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. This is his main argument – that this is not something which justifies gross misconduct label and dismissal, considering his 7 year service and, I assume, clean record.
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.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
Thank you. These were my thoughts exactly. They are also out of their own procedure on two counts, which I'm advising him to highlight to them. I'm writing notes for him to take with him tomorrow as unfortunately the employees are not unionised so he will be unrepresented. Luckily he has had another offer of work today so will be resigning but rather that than a record of dismissal for fraud. I know applications for constructive dismissal are notoriously hard to prove but it may be worth him considering it.
yes, but also he should consider that such a claim will only compensate him for loss of earnings and if he has a new job then his losses will be greatly reduced, unless there is a large difference in pay
Happy to clarify anything further if needed?
Thank you. I think he has everything to hand now. They are certainly outside their own procedure on 2 points and the ACAS position is helpful here.
you are welcome, hopefully he manages to defend this
Could you please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? It is important for us to know either way so we can track customer satisfaction or identify whether I need to help you further? Thanks
Yes, this has answered my question. Excellent service.