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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Can my employer dismiss me on the grounds of gross

Customer Question

Can my employer dismiss me on the grounds of gross misconduct if I fail to disclose to them a police investigation which concluded without charge?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Customer: replied 1 year ago.
HI Ben.
Expert:  Ben Jones replied 1 year ago.

How long have you worked there? Also, how old is the offence?

Customer: replied 1 year ago.
I have worked there for 2 and a half years. There is no offence - I was investigated and cleared without charge.
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. First of all you have over 2 years’ service with the employer which means you are protected against unfair dismissal. This means that to dismiss you the employer has to show there was a fair reason for dismissal and that a fair procedure was followed. Conduct is a potentially fair reason for dismissal so it will come down to whether it is relevant here and also whether the procedure they followed was fair.

As there is no automatic legal obligation on employees to disclose police investigations they are subject to, whether such a failure was a misconduct offence will very much depend on the contract and internal policies. So you need to check these to see if there was a specific obligation on you to make such a disclosure to the employer because that would be the only time they can try and argue that you had been guilty of misconduct. The misconduct would be that you had failed to follow a specific contractual obligation you had.

Even if there was such an obligation on you and you failed to follow it, it does not mean it would automatically amount to gross misconduct. It has to be serious enough to qualify so it would depend on whether it impacted your ability to do your work in any way, such as if you were a teacher and were investigated over child abuse offences, or if you were a banker and were being investigated for fraud…these kind of situations. But I would say that the fact you were only under investigation, never charged or convicted, means you are technically innocent so regardless of what the allegations were, you are officially an innocent man so the offence of not informing them should not be viewed that seriously.

This is your basic legal position. I have more detailed advice for you in terms of the rights you have should you still get dismissed, 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 is no extra cost and 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
Customer: replied 1 year ago.
Thank you for your prompt and comprehensive reply Ben. I have submitted a rating and look forward to continuing this discussion.
Expert:  Ben Jones replied 1 year ago.

Certainly please leave it with me i am travelling so will reply later this eve thanks

Expert:  Ben Jones replied 1 year ago.

Hi there, if there are any doubts or evidence that the requirements for a fair dismissal 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.

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 1 year ago.
Thanks for this additional information Ben.
Expert:  Ben Jones replied 1 year ago.

You are welcome, all the best

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