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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46195
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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If I am dismissed misconduct of

Customer Question

If I am dismissed for gross misconduct for breach of contract for restricted business due to me running a mobile hairdressing business in the evening ( I work in a salon during the day) will my contract be rendered void after termination?
Submitted: 11 months ago.
Category: Employment Law
Expert:  Ben Jones replied 11 months ago.
Hello why do you think the contract will be void, are the allegatins not true?
Customer: replied 11 months ago.
The allegations are true but she has been holding on to this information for a year and I have proof of this and only brought it out a matter of days after refusing to sign a contract before having it looked over by my union rep. Is this not in itself an infringement of my rights and is victimisation which is a breach of contract on her behalf no?
Expert:  Ben Jones replied 11 months ago.
Hello, dismissal on grounds of gross misconduct does not render your contract of employment and associated restrictive covenants void. Otherwise, it would be very easy for employees who wish to avoid being bound by such restrictions to do something amounting to gross misconduct and engineer a dismissal and avoid the restrictions. So I am afraid that the restrictions will continue to apply. The circumstances when the restrictions may not apply after termination are when the employer has acted in breach of contract, for example dismissal without giving you the notice period you are due (unless of course you are dismissed for gross misconduct when no notice is due). Dismissal for not agreeng a new contract is not in itself a breach.I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Customer: replied 11 months ago.
Thanks you Ben,
But is her behaviour not against the law? I have all the proof I need. It's victimisation isn't it?
Expert:  Ben Jones replied 11 months ago.
What do you think is against the law here?
Customer: replied 11 months ago.
The fact that she is using something she has saved for a rainy day for a year when the real reason is that I didn't want to sign her contract. Is this not victimisation?
Expert:  Ben Jones replied 11 months ago.
Victimisation is when you have made a complaint about a protected characteristic, such as age, gender, race, religion, disability and then are treated detrimentally as a result of it. So no, this is not victimisation in the legal sense of the word. Can I just check how long you have worked there for?
Customer: replied 11 months ago.
So if she was really bothered about it why wasn't it brought to my attention a year ago. Just so happened to be after I refused to sign the contract till it had been looked over. I have proof of this.
Customer: replied 11 months ago.
I have worked there for 4 years.
Isn't it that because I belong to a trade union and asked for them to look my contract over and the end result victimisation? Or bullying? Not sure as I just researched this online.
Customer: replied 11 months ago.
Sorry to ask what may seem as stupid questions but if I don't have a chance at fighting for my notice then I shouldn't bother trying.
Expert:  Ben Jones replied 11 months ago.
Ok so this is new information which would give you some additional rights based on the fairness of the dismissal. As you have ore than 2 years service you are protected against unfair dismissal, meaning the employer has to follow a fair procedure. They must adhere to the ACAS Code of Conduct which states that any disciplinary issues must be dealt with without unreasonable delay. If she knew of this for a year and has only just used it against you then that is likely to make the dismissal unfair. So you can challenge it on these grounds and pursue them for unfair dismissal and your notice period. This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow to pursue this, 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: 46195
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 11 months ago.
Thank you. Initially, an appeal can be submitted to the employer straight after the dismissal outcome is communicated. If the appeal is rejected a claim for unfair dismissal and wrongful 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. Also, a new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 11 months ago.
Thank you so much Ben!!! I am actually crying right now!!! You have been a tremendous help!!!
Expert:  Ben Jones replied 11 months ago.
You are most welcome!
Customer: replied 11 months ago.
Hi Ben, I have now been suspended on full pay till the disciplinary to which she didn't explain why. She said her HR department advised her to. Which is fine. But she won't allow any of the staff members to give me my equipment at work. Can she legally hold all my things? That's my property so surely not.
Tarryn-Jane Ayre
Expert:  Ben Jones replied 11 months ago.
Hello what property is this exactly?
Customer: replied 11 months ago.
All my hairdressing equipment.. Clippers and trimmers and all my brushes etc..
Expert:  Ben Jones replied 11 months ago.
If this is your own personal equipment then you should be allowed to collect it. They should not hold it as it is not legally theirs. Whilst you may not be allowed to contact employees to get t, the employer should make arrangements for you to collect it, for example a quick supervised visit
Customer: replied 11 months ago.
Can they not withhold my property stating that I'm not allowed to perform my usual skills during my paid suspension and therefore keeping my property till the disciplinary is over? This is not stated in the company handbook or contract.
Expert:  Ben Jones replied 11 months ago.
The property is yours so unless there was a specific clause allowing them to do that, you should be allowed access to it

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