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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45375
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can an employer dismiss an employee without

Customer Question

Can an employer dismiss an employee for misconduct without providing proof? If not, what would be my potential entitlement? I was refused to seeing proof, despite asking 3 times. I was told I was going to be let go by my direct manager (100%) before an investigation meeting took place.
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months ago.
Hello how long have you worked there for?
Customer: replied 9 months ago.
I have worked there for 3 years and 6 months
Expert:  Ben Jones replied 9 months ago.
What were the reasons for dismissal and when were you dismissed?
Customer: replied 9 months ago.
To further explain, I was employed by these employees, but working as a contractor to service another company. I was accused of forwarding sensitive information through email, but have no record of this and was refused of seeing proof to this matter. I was told on Monday that I would be dismissed on Friday by my direct manager - Without any HR investigation taking place beforehand. An investigation meeting took place and I was told an investigation would continue, following after so, I was received a call from my direct manager asking how my exit went and I told him that this investigation would still continue - He immediately said, there's really no investigation and I will be dismissed - Without any official confirmation from HR.
I was told by my manager to look for work in the mean time before being dismissed and eventually finding a job quickly, I decided to resign due to pressure of being fired. It was clear that the following did not happen:Discussions of my dismissal in advance, as a foregone conclusion, failing to conduct an investigation before the hearings, refusing to provide evidence for appropriate defence.Investigation proceedings took place 3 weeks ago and I just was exited from the company this Tuesday of this week. I later received a letter from HR detailing the investigation was officially terminated due to my resignation.
Expert:  Ben Jones replied 9 months ago.
So the company that dismissed you - were you working for them as an employee or as a contractor?
Customer: replied 9 months ago.
The company that dismissed me, I was working for them as a contractor
Expert:  Ben Jones replied 9 months ago.
Ok thank you let me get my response ready please
Expert:  Ben Jones replied 9 months ago.
If you were working as a contractor, rather than as an employee then your employment rights are rather limited unfortunately. You will not be protected against unfair dismissal so there is no requirement for the employer to conduct a fair procedure or show that there was a fair reason for dismissal. Employees have protection against unfair dismissal and the employer has to conduct an investigation, hold a disciplinary and show there was a fair reason to dismiss based on a genuine belief of guilt. However, none of these requirements apply to contractors. A contractor can be dismissed for more or less any reason and without a fair procedure, so no legal requirement to hold an investigation, find evidence or even prove any sign of guilt. The employer can dismiss them as they wish even if it is based on an unfounded reason with no evidence whatsoever. The only protection you would have is that you were entitled to receive your contractual notice period on termination, unless you were dismissed for a serious breach of contract. So you cannot challenge the dismissal itself, or the reasons behind it, but can pursue the employer for the notice period if you were not given one. This is your basic legal position. I have more detailed advice for you in terms of the law on notice periods and how you can pursue the employer for it if it was unpaid, 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
Customer: replied 9 months ago.
Apologies, misread your question. I was employed by this company and that company was the one who wished to dismiss me. What would be my rights in this case?
Expert:  Ben Jones replied 9 months ago.
Ok let’s start again. So if you were an employee and had been continuously employed with your employer for at least 2 years you will be protected against unfair dismissal. This means that to fairly dismiss you your 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. The procedure they must follow is outlined in the ACAS Code of Conduct and in summary it requires a reasonable investigation, a formal disciplinary, a genuine belief that the employee was guilty and be able to show that the decision taken was a reasonable one in the circumstances. Failure to follow a fair procedure or show a fair reason can make the dismissal unfair and the matter can be pursued further if necessary. This is your basic legal position. I have more detailed advice for you in terms of the specific law on misconduct dismissals and what is expected by the employer in each step, 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: 45375
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 9 months ago.
Thank you for the detailed information, I have provided you with a rating.Could I please ask for the description of the laws you mentioned?
Expert:  Ben Jones replied 9 months ago.
Thank you. So as mentioned, 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.
Expert:  Ben Jones replied 9 months ago.
Thank you. So as mentioned, 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 9 months ago.
In this sense, do you feel I have much of a case here? To discuss steps, here are the events that took place:1. Email was sent to different group alias
2. Email was 'supposedly' forwarded onto off-domain account (personal account)
3. This was brought to the attention to myself by indirect manager first and then direct manager
4. Light warning was given to not do so again
5. No evidence was provided, despite asked for evidence
6. This was brought to light again a few weeks later, manager instructs that I will be dismissed by end of week
7. Mid-week I receive an email from HR regarding investigation meeting to take place
8. Account and defence was provided during investigation meeting
9. Was told to stay out of work for a few weeks while investigation was taking place
10. Phone call from manager asking how my exit went, despite no formal indication that I was being let off, as I was instructed to wait for something formal from HR. Was told to find a job to cover myself.
11. I handed in my resignation to HR as I found a new job, not one I wished to start but felt pressured and very worried of being labeled as 'dismissed'.
12. Exited from company this Tuesday
13. Received mail from HR regarding investigation, was told investigation was closed due to my resignation
Expert:  Ben Jones replied 9 months ago.
ok so in the circumstances you cannot claim unfair dismissal as you were not dismissed and instead you would be looking at constructive dismissal, which is were you are forced to resign. There were certainly procedural failures which suggest that the employer was not following a fair procedure - telling you that you would be dismissed even before any investigation or disciplinary took place, and following up in tat when not even a disciplinary had taken place. So you would have had a reason to resign in the circumstances. As things stand now, 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.

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