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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48767
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben, i would like to ask a question regarding my current

Customer Question

Hi Ben, i would like to ask a question regarding my current employment situation
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello please explain your situation in a bit more detail and I will try and help. As I am going offline shortly I won't be able to pick this up again until the morning, thanks
Customer: replied 2 years ago.
Hi my daughter has had an allegation for theft from her employers and the matter has been forwarded to the police and she is awaiting police decision post interview with a criminal lawyer , however now the employer is requesting she attends an investigatory meeting. She has been advised by the criminal lawyer that this would not ne appropriate but he is not an employment lawyer and she needs advice on whether to attend or not. My daughter wishes to resign right now. What can she do and what can her employers do if she does not attend the investigatory meeting.
Expert:  Ben Jones replied 2 years ago.
Good morning, can you please let me know how long she has worked there for?
Customer: replied 2 years ago.
6 years
Expert:  Ben Jones replied 2 years ago.
The fact that there is an ongoing criminal investigation does not really affect the employment situation. You should look at these as two separate processes which would run side by side. So if she is being asked to attend an investigatory meeting, she should really do so. An investigatory meeting is just the first step in the employment side of things. It allow s the employer to ask her questions about the allegations to try and work out what happened. They will use this as part of the evidence gathering process and afterwards they can decide on whether here is sufficient evidence to take matters to a formal disciplinary. However, at this stage she is still considered innocent until proven guilty at a disciplinary. If she refuses to attend an investigatory meeting that could in itself amount to misconduct and insubordination and the employer can discipline her for that. So I would not recommend that she refuses to attend as it could make things worse for her. This is your basic legal position. I have more detailed advice for you in terms of the full process the employer must follow to conduct a disciplinary, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 2 years ago.
Many thanks for the rating. Misconduct, such as the allegaiton here, 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.
Hope this helps
Customer: replied 2 years ago.
Hi Ben, i am still somewhat confused as her criminal lawyer states it would be unwise to say anything to the company at this stage having given the Police a statement for the allegations, so if now she says anything to the company at the investigation meeting, they can use that as evidence against her if the Police decide to press charges. My other point is that she feels she can no longer continue her employment with the company due to companywide notification of her suspension and just wants to resign from her post and move on with her life hoping the Police will not press charges.
Expert:  Ben Jones replied 2 years ago.
Ok let me clarify in some more detail. As mentioned the two investigations are separate. The employee may refuse to respond to questions, often on legal advice, on the basis that questions could prejudice a pending trial or interview. The employer should permit the employee to have an opportunity to make any statement she may wish to volunteer and this should ideally be when she has had time to consider her position. What an employer should not do is interrogate the employee or seek to pressurise the employee into making any admissions of guilt. However that does not mean the employer has to wait until the criminal issues are finalised as that could often take months. In fact the ACAS code of conduct which employers are expected to follow in disciplinary situations states that "where the matter requires prompt attention the employer need not await the outcome of the prosecution before taking fair and reasonable action". As to leaving – she can resign at any time but would be expected to work through her notice period to try and avoid an allegation of being in breach of contract. During the notice period the employer could still continue with the disciplinary and even dismiss her. She has nothing to lose by asking to be released by mutual agreement and for them not to pursue this internally.
Customer: replied 2 years ago.
Thanks for the further clarification on this matter, i now understand your point. Could you please elaborate more on the point of asking to be released by mutual agreement and not pursue this as this is something we are not aware of and would any company consider this knowing that there is a pending possible charge and conviction on the employee.
Expert:  Ben Jones replied 2 years ago.
This is something that is done entirely at their discretion. They could just allow her to leave with immediate effect and release her from her contract and drop the investigation/disciplinary. It works for them if they do not want to spend the time and resources in investigating this and see it as an easy way to end this. But as mentioned, it is entirely down to them and if they wanted to they could pursue it to completion. But she has nothing to lose by approaching them and proposing it as an option.
Customer: replied 2 years ago.
Thanks for the further clarification on that option, we would like to pursue that any would like your help and assistance on appropriate wording in the letter to request this, but i also feel that i think the company may not want to agree with the
mutual agreement as there is the pending criminal investigation on the allegation and may be seeking compensation for loss
of equipment alleged taken.
Expert:  Ben Jones replied 2 years ago.
Well unless you try you would not know if they are willing to consider it so that is the least you can do. I can draft a letter but as this is an additional service it would be charged separately. I can send over a quote if interested.
Customer: replied 2 years ago.
yes please send quote for consideration
Expert:  Ben Jones replied 2 years ago.
Proposal sent
Customer: replied 2 years ago.
thank you will consider when my daughter returns home and come back to you on that and further questions we may have.
Expert:  Ben Jones replied 2 years ago.
No problem, take your time
Customer: replied 2 years ago.
Hi again Ben,As a thought still behind not wanting to attend the investigatory meeting or make any statements that might affect the
outcome of criminal proceedings taken or not, would it be unreasonable to request the employer to wait for the decision of the criminal proceedings before you can talk because you felt that the criminal decision was more important that the disciplinary and you do not under any circumstances want to jeopardise your case by saying something in the investigatory meeting that may incriminate you further as this will be inevitably be passed on to the Police.
Expert:  Ben Jones replied 2 years ago.
Yes you can but as mentioned there is no legal requirement on them to wait and as the ACAS code states in serious matters they can proceed with the disciplinary
Customer: replied 2 years ago.
Forgive for re-iterating again, but I cannot get my head round one issue, the fact that an employer fails to do initial investigatory meeting on the allegations to get the employee's side of the story first before Police involvement, then decides to inform and force Police to try and get the employee arrested /interviewed from home, although no arrest was made and only an interview with a lawyer was done at the station and she is awaiting Police /CPS decision and now the company thinks it is ok for her to attend the meeting to discuss the allegation in detail when she was already advised not to say anything at the Police interview and only give a statement as to how the company can feel that she is able to tell them more than she told the Police thereby incriminating herself deeper in aiding the Police to charge her on this further presented information, surely no one would want to do that would they?
Expert:  Ben Jones replied 2 years ago.
it is all to do with the act that both processes are entirely separate - neither depends on the other. They essentially try to investigate the same thing but from different sides and separately. The employer does not ave to use any information given to the police and neither do the police have to consider evidence given to the employer. So it is important not to link thee two and remember that they can exist and continue at the same time in parallel
Customer: replied 2 years ago.
I am afraid i am finding it hard to believe that an employer that has predetermined guilt based on evidence gathered and expecting arrest/confession and conviction by handing the matter over to the Police, who then realises that the employee
has not been arrested, not confessed and awaiting judgement on conviction based on statement given would treat the investigatory meeting as separate and not forward any information to the Police to confirm their allegations and convict the employee, I am sorry but I cannot see these as two different investigations for the same allegation.
Expert:  Ben Jones replied 2 years ago.
The employer has not pre-determined guilt because they have not taken any action yet to discipline by issuing warning or dismiss so you cannot say that. Th fact they have reported to the police doesnt mean that she is definitely guilty, but it is their legal right to do this if they have a suspicion, just as they can investigate themselves. So whether you agree or not, the two processes are separate from a legal perspective
Customer: replied 2 years ago.
The investigatory meeting is to conducted by someone who is titled Senior Counsel, which i believe is a possible legal representative for the company, how can i be assured of an fair and impartial investigation with no legal representation of my own and why would the company use a legal person, surely this would not be my favour.
Expert:  Ben Jones replied 2 years ago.
Employees do not have the right to be reprsented at investigatory meetings. The employer can use any appropriate person they choose to conduct the investigation, it would usually be a manager but it could be an external HR person. You can ask who this person is if you are unsure of who they are. The only thing is they should not have been involved in the allegations so that is how general fairness is determined. But you have to remember that an employment investigation and disciplinary is not the same as a criminal one, the rules are not as strict and the employee's rights are not as extensive
Customer: replied 2 years ago.
How do we know that the investigating person appointed has not been given all the information relating to the allegation beforehand and what if we know from inside sources that this is the case, how can we obtain a real impartial investigation.
Expert:  Ben Jones replied 2 years ago.
Sometimes you will not know all the facts, you cannot force the employee to disclose that - you can ask but they may not tell. So there are situations where yo will work on assumptions. You cannot force the employer to conduct the type of investigation you expect of them and if that is the case and she is dismissed as a result then you will have to appeal or claim unfair dismissal - it is the only way to challenge procedural irregularities
Customer: replied 2 years ago.
in an investigation where the employee's word against a manager's word is the fine line between disciplinary or not who would the investigation officer believe because it is one person's denial against another person's fact i.e. that for an example a manager had given permission to take something but now denies that he had ever given permission.
Expert:  Ben Jones replied 2 years ago.
Yes it can be a fine line and an informed decision will have to be made based on the available evidence. It will not always be the right one but that's just the way it is. Many employees have been dismissed when innocent, just as many people have been convicted in court when innocent. No legal system is perfect
Customer: replied 2 years ago.
I give below a quote from the company disciplinary procedure below, it states that my earlier argument of investigation prejudicing the case, how do we convince this to the company.
"Alleged Criminal Activity
An employment investigation may run in parallel to a police or audit investigation as may be necessary and where possible should not be held up by any such investigations, unless considered prejudicial to those investigations to proceed. It is not always necessary to wait for the outcome of any court hearing before deciding on disciplinary action."
Expert:  Ben Jones replied 2 years ago.
Hello, the best way is to forward to them any advice you have received from a criminal lawyer that doing this will prejudice the criminal investigation. You cannot stop the employer from investigating the matter, neither can you prevent them from taking any action against her if they believe she has not followed their instructions, They can do as they wish and if you disagree then the only way to challenge it is in tribunal
Customer: replied 1 year ago.
Hi, I wanted to ask what is the EDT (effective date of termination ) of an employee as far as the law is concerned
Expert:  Ben Jones replied 1 year ago.
Hello, if you have a new query please post a new question for my attention (for Ben Jones) and I will deal with it, thank you