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michael holly
michael holly, Solicitor
Category: Employment Law
Satisfied Customers: 6539
Experience:  Over 20 years experience of dealing with employment law matters and qualified mediator
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We have an employee that has 10 years service. They are a

Customer Question

We have an employee that has 10 years service.
They are a nightmare in terms of attitude etc. We started the disciplinary process and gave him a verbal warning for 3 months due to two emails sent to his manager where the tone was inappropriate and rude intone.
he has appealed this on the grounds that we did not follow procedure and although we disagree we have allowed the appeal to go ahead.
The disciplinary policy is contractual.
His appeal states the following and I want to know if he has grounds to get the warning removed? even if we agree on some aspects of the procedural argument are we allowed to keep the warning in place?
He states we did not follow are policy/procedure.
We changed the policy after his disciplinary hearing was in process
He is stating, and he is partly right that the warning he was given a formal verbal warning does not exist as per out policy.
Our Policy states the first stage as an Informal first warning, although this means exactly the same thing does the wording need to be exact as per policy? can we re issue the letter and state that this means the same thing?
Our policy states that we give 3 working days notice. The letter was posted 3 working days in advance but he states he did not receive it on time and therefore only had 2 days notice. He did not raise this at the time or during the hearing, had he raised this we would have rescheduled. Again does he have the right to appeal on this point. If the letter is dated 3 working days in advance of the hearing is this enough?
Thanks
Submitted: 5 months ago.
Category: Employment Law
Expert:  michael holly replied 5 months ago.

Does he dispute that the tone of the e mails was inappropriate ?

Is there a time limit for commencing the procedure in the contractual disciplinary procedure?

Michael

Customer: replied 5 months ago.
No he is disputing procedural grounds stating as per the points I said in my original email that we have not followed the company procedure.What do you mean by time limit? He was given 3 days notice
Expert:  michael holly replied 5 months ago.

Thank you

The company must have an appeal process or you need to follow the ACAS procedure for appeals.

He is appealing on the basis that the procedure was not followed.

The fact that a procedure was not followed does not in itself invalidate the decision.

The issue is whether any prejudice has resulted and whether it would have made a difference to the decision.

He has not denied the substance of the allegations

On the first point there is a difference in the phrases used as a "formal" oral warning is not the same as an informal warning

You can simply acknowledge this and confirm that his employment record has been amended accordingly.

He did not get 3 clear days notice.

You can acknowledge this but it is difficult to see how this might have prejudiced him , he raised no defence and had nothing to prepare or consider . He has not indicated how this caused him a problem.

The bot***** *****ne is that he is correct but the deficiencies have not caused him any prejudice as he does not deny the substantive allegation and any procedural mistakes did not affect the outcome. Confirm the result and make sure the 6 months runs from the original decision , not this one

I hope this helps.If there are any further points please reply I will be happy to respond

Best wishes

Michael

Customer: replied 5 months ago.
Hi yes we have an appeals process and are going through this with him.Just so I understand even if we conceded that we had not scurf completely as per our procedure and policy we can still uphold the decision. Is procedural mistakes would not influence the final decision. Where I have worked previously thus gas kit been the case is if there was any procedural issue irregularities then the warning had to be stuck off ? Please just confirm for me the legal stance as this person is letigious
Expert:  michael holly replied 5 months ago.

The disciplinary process is based on the court procedure and the idea of fairness . A defect in procedure is regrettable but does not make the end result unfair.

The employee has not disputed the allegation. What difference has the fact he had 2 1/2 days notice as opposed to 3 made. He did not put a defence in anyway.

Michael

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