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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46148
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have just been called to a meeting and have been told I am

Customer Question

I have just been called to a meeting and have been told I am under investigation, after they read the list of thing they offered my a pay out to leave today, trouble is the list they read are untrue but this is coming from the HR department and I don't have a leg to stand on. please help I can not be out of work.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Firstly can you tell me how long you have been employed there please.
Customer: replied 1 year ago.

14years and 10months

Expert:  Ben Jones replied 1 year ago.
Thank you for that information please leave this with me and I will get my advice ready for you on how to proceed with this. I will get back to you ASAP There is no need to wait on here I will email you when ready regards Ben.
Expert:  Ben Jones replied 1 year ago.
Hi, sorry i posted a follow up query but it does not appear to have registered so you would not have known i was waiting for an answer. I will try again, as soon as I hear back from you I can assist with your query - what are the allegations against you exactly and do you know what evidence the employer may have?
Customer: replied 1 year ago.

I will ask HR department for a full copy of the allegation, and as for as I know there is no evidence. but as I said the allegation are from HR directly and the production manager so they can make thing up or twist thing to fit their needs.

Expert:  Ben Jones replied 1 year ago.
Thank you. I presume if allegations have been made against you that they are related to misconduct. They may have come from HR but the law still requires an employer to follow a specific procedure before they can fairly dismiss someone. They could ask you to resign or offer you a way out but you cannot be forced to do that. In that case they would have to decide on whether to proceed with their own disciplinary procedure.
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:
• 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.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46148
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

the HR department have said they are not obliged to supply the information you asked for

Expert:  Ben Jones replied 1 year ago.
At this stage no, but if they are going to take this through a formal disciplinary then they would be required to disclose details of the allegations and any evidence to be used at the hearing
Customer: replied 1 year ago.

I have had the 1st part of the investigation, after I was hand a document to sign of what was said, in the document they HR representative has out lager part of the investigation and the evidence, I can only assume this is to make thing look their way. do I have the right to record the interviews? the same HR representative is a witness against me, this this right that they should be in the room?

Expert:  Ben Jones replied 1 year ago.
I will respond later today with my advice thank you
Expert:  Ben Jones replied 1 year ago.
Hello again, you would ideally be looking to obtain the employer’s consent to record the interviews but if you believe that would be declined you could potentially look at recording these secretly.
It is not illegal to secretly record meetings between individuals. Whether any legal issues arise as a result depends on the contents of the conversation being recorded and how the recording is to be used.
The first issue is in relation to third party confidentiality. The Data Protection Act 1998 (DPA) applies to situations involving the processing of personal data. If the recording deliberately or accidentally records personal data about a third party, then its use could be restricted by the DPA. As such, try not to keep any recordings that contain such information.
The second issue is to do with the intended use of the recording. If this is to be used as evidence in court, whilst the court retains the final authority on whether it should be allowed as evidence, certain principles exist and can be considered in advance.
The leading case is that of Dogherty v Chairman and Governors of Amwell School. Mrs Dogherty, a teacher in the school, had made secret recordings of an "open" disciplinary meeting that she was subjected to and the subsequent "private" appeal meeting, held in her absence. She then tried to use these recordings as evidence in her claim for unfair dismissal against the school.
The Employment Appeal Tribunal decided the following:
• The contents of the "open" disciplinary hearing were capable of being secretly recorded as it was directly relevant to the teacher's claim
• The recording of the "private" appeal hearing was not admissible as evidence. As this was conducted in private, it was not directly relevant to the claim.
A more recent case is that of Punjab National Bank v Gosain, where an employee covertly recorded private discussions made by the employer as part of a grievance and disciplinary hearing. The employer may inappropriate remarks about the employee and the Employment Appeals Tribunal decided that this is admissible evidence as the comments did not form part of the deliberation process of the grievance and disciplinary.
So whether a court would allow the use of a secret recording very much depends on the contents of the recording and the nature of the meeting that was being recorded. As long as there is no illegal recording of personal data about others and the conversation that was recorded was not part of private deliberations about the issues at hand, there is a good argument that their use as evidence should be allowed.
As to the HR person attending too, if they are part of the disciplinary process they should not also act as HR support or in any other function so you can ask that they do not attend due to potential bias.
Customer: replied 1 year ago.

what about the issue of large part of the invention statement missing that HR are Tring to get me to sign

Expert:  Ben Jones replied 1 year ago.
if you do not agree to anything do not sign it and provide your version of events to correct what you believe is wrong
Customer: replied 1 year ago.

as per the recorded part I informed all in the room that a recording was taking place, is this ok

Expert:  Ben Jones replied 1 year ago.
Yes That's fine
Customer: replied 1 year ago.

work have increased the pay out offer and I want to accept, have have offered to pay legal costs, of up to £350 can you handle this

Expert:  Ben Jones replied 1 year ago.
I am afraid we cannot, it is not possible for us to take on business through this site so just find a local solicitor as that would be the best way
Customer: replied 1 year ago.

can you recommend one, its only to dot the I, and cross the Ts

Expert:  Ben Jones replied 1 year ago.
Any employment solicitor local to you can do this. It is bread and butter work so quite straightforward and it does not matter who you choose

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