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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My employer seems to be trying to dismiss me, or so it seems

Customer Question

hi my employer seems to be trying to dismiss me, or so it seems at this stage. my disciplinary hearing is on Friday 8th April 1230. he is stating claims of rudeness, objectionable or insulting behaviour to a member of the public. which i deny. the situation was a complaint was made to the swimming pool management whilst we were working there. the complaint stated a female heard wolf-whistles and a remark was made about her appearance. there were 2 of us working there at the time and we both was put on suspension. this was on the Tuesday. a investigative hearing was carried out to both of us separately. my college said he heard the whistle and a remark 'sweet cheeks' was made by myself. i don't deny saying sweet cheeks, i call my colleges this all the time, as i did on this occasion. so the female has misinterpreted this and my college didn't realise it was directed at him not her.
so in conclusion it's my word against him regarding who it was aimed towards. my question is have i got a claim if i am dismissed? and would dismissal be a reasonable course of action?
this is point 1. secondly at the investigative hearing i am bombarded with more allegations of falsification of time-sheet hours. the vans are tracked and there does seem to be some discrepancy between my time-sheets and the van tracking data. i have worked with this company for 11 years and 6 of them with this employer. i have nothing on my personal record about my failure to complete time-sheets correctly before. sometimes the boss will say to me charge this to another job for example, which he denies saying now. my word against his again.
so to summaries if no complaint has been made regarding my hour keeping before, given the time i have been with the company and not changed my time-keeping recording. shouldn't this be a situation where the employer needs to take me to one side and give me a training session on how to fill out paperwork correctly? again is dismissal a reasonable course of action for this? and shouldn't i be investigated separately to the above allegation in question?
abit of background is the company/employer is in a fair bit of debt. he has 3 electricians working for him. one of which has been made redundant, on the Thursday before Easter. the allegation at the swimming pool happened on the Tuesday back from Easter. by his own admittance he can't afford to make me redundant. the other electrician has been asked to go self employed so he can have him as and when. so doesn't it seem like hes trying to get rid of me instead of making me redundant?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Remus2004 replied 11 months ago.
How long have you worked there?
Customer: replied 11 months ago.
since april 2010
Customer: replied 11 months ago.
when this boss took over. the company changed hands. i've been with this company since feb 2005
Customer: replied 11 months ago.
hello are you still there?
Expert:  Remus2004 replied 11 months ago.
Hi I'm traveling, keep losing my signal, let me pass this on to a colleague
Expert:  Ben Jones replied 11 months ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query. So you think this is something they are trying to do to avoid redundancy?
Customer: replied 11 months ago.
it seems as if it's being blown out of proportion to avoid paying redundacy yes.
Expert:  Ben Jones replied 11 months ago.
If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed. According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss. In this case it is going to be alleged misconduct. There are certain requirements an employer must meet to justify a dismissal is fair and they do not need to prove with certainty you were guilty to be able to do so, but they do need a reasonable investigation, genuine belief and to show it was a reasonable response. If they really believed that you had sexually harassed a female client, then that could be gross misconduct as it can be a serious offence. You may not have aimed the comments at her but the employer does not know that and they can only go by their investigation so it depends on what they genuinely believe happened. As to the timesheets, I do agree that this should be something which results in perhaps a warning at most and retraining to make sure you are complaint with the required procedure. This is your basic legal position. I have more detailed advice for you in terms of the law on misconduct dismissals and what your options are if you do end up being sacked, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46168
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 11 months ago.
okay what do you think are my options?
Expert:  Ben Jones replied 11 months ago.
Thank you. First of all I will explain the law on dismissal. 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. 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.
Customer: replied 11 months ago.
okay and finally i think. is it reasonable to deal with these two allegations together? it seems as though if the swimming pool incident hadn't occurred then the time sheets would have not been raison as a problem. i have been put on suspension for the swimming pool allegation. not the time sheets allegation.
Expert:  Ben Jones replied 11 months ago.
it does not matter what your suspension is for - that is irrelevant. The reasons for suspension do not determine the subsequent disciplinary action. But at the same time the employer should be going on a fishing exercise just to try and add whatever they can to justify disciplinary action as it could suggest they are trying to discipline you whatever happens
Customer: replied 11 months ago.
i'm sorry they should or shouldn't be going on a fishing exercise?
Expert:  Ben Jones replied 11 months ago.
sorry, my typo - should not be
Customer: replied 11 months ago.
in final, if i am dismissed on friday. with everything you have heard do you think i have a case here?
Expert:  Ben Jones replied 11 months ago.
There is a potential case there indeed but remember it is the employer's duty to defend such a claim and if they can shoe they met the criteria set out in law above, they can defend it. Also remember that you have to go through ACAS first and negotiate with them and the employer - often you get a settlement even without having to go to tribunal
Customer: replied 11 months ago.
okay thank you. last question i promise. can an employer track his own vans without the drivers(employees) knowledge? and if not what reference can i make towards that?
Expert:  Ben Jones replied 11 months ago.
I can give you a pre-prepared answer I have in relation to this which will be of use
Customer: replied 11 months ago.
that would be useful thank you.
Expert:  Ben Jones replied 11 months ago.
The starting point is that a company car is company property and an employer has a right to know its whereabouts. There are however certain procedures and guidelines that employers need to adhere to in order to keep within the law when undertaking such monitoring. Firstly, employees have a basic right to privacy under the Human Rights Act. One argument is that monitoring devices fitted to vehicles affect the employees’ right to privacy and is a breach of their basic human rights. Secondly, monitoring of vehicle movements where the vehicle is allocated to a specific driver and where information about the performance of the vehicle can be linked to a specific individual will fall within the scope of the Data Protection Act 1998. As such, the tracking data is likely to amount to ‘personal data’ under data regulation principles and be subject to certain regulations. The following is guidance published by the Information Commissioners Office, which deals with data protection rights:Where private use of a vehicle is allowed, monitoring its movements when used privately, without the freely given consent of the user, will rarely be justified;If the vehicle is for both private and business use, it ought to be possible to provide a ‘privacy button' or similar arrangement to enable the monitoring to be disabled during private use;Where an employer is under a legal obligation to monitor the use of vehicles, even if used privately, for example by fitting a tachograph to a lorry, then the legal obligation will take precedence. Employers are therefore encouraged to have a specific policy for the use of vehicle monitoring and to make employees aware of its existence. Where possible, the above principles should be applied to ensure privacy is maintained when the vehicle is used solely for private use. Generally, the most common way of dealing with privacy issues in such circumstances is through the introduction of a specific monitoring policy and a privacy feature on the vehicle. You are free to raise your concerns with your employer and discuss the above information, trying to reach an amicable resolution. You can either do this informally or by raising a formal grievance. Remember that you have certain rights in these situations and that your employer should act reasonably and justify their actions as far as possible.

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