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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48204
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I worked company and a half years but was dismissed

Resolved Question:

I worked for my company for ten and a half years but was dismissed on the 13th August for what they called gross misconduct. Myself and four colleagues who were night workers made some remarks between ourselves which were called racist and homophobic, nobody present was offended or upset, in fact everyone laughed. The comments were made as jokes not aimed at any individual or particular group. Another person not in the area apparently overheard some of this and reported us to H.R. A subsequent investigation took place, which then lead to a disciplinary procedure and ultimately to my dismissal, no one else from the group was dismissed. I appealed the decision which the company upheld, but I cannot believe this is at all fair and feel I should bring a case of unfair dismissal. The company said I was fired under the dignity at work policy which none of us had ever heard of. Do you think I should proceed with a claim for unfair dismissal
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. can you tell me did you have somebody present with you at the disciplinary and did you admit to making these comments please.
Customer: replied 2 years ago.

I didn't have anybody with me at the disciplinary hearing, but I have a full transcript of what was said. I did admit to making some comments.

Expert:  Ben Jones replied 2 years ago.
Thank you for your response. I will review the relevant information and will get back to you as soon as possible. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays.
Expert:  Ben Jones replied 2 years ago.
Many thanks for your patience. Before you consider taking this further you need to look at the laws in this area and what is expected of an employer. 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.
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 or evidence that the above requirements have not been satisfied, 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 can be made in the employment tribunal. As you have been advised, you should an early conciliation claim first to see if you can negotiate with the employer before you make a claim.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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