Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Apologies for the delay. Do you have any formal procedures in place with regards ***** *****?
Also, how long has he worked there?
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Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.
To answer your questions:
You could indeed suspend this person but this should only be done whilst an investigation is being carried out. A suspension is not a type of punishment though so only do it if you believe it is necessary, in a sense that you have to protect the business (i.e. you do not want to leave him having any influence on the evidence or other staff or even stock whilst the investigation is running). Dismissal is an option but you have to ensure that you follow a fair and defined disciplinary procedure as he is protected against unfair dismissal
So no, you cannot dismiss him before an investigation or a fair disciplinary procedure is carried out. Even if you have grounds to dismiss this must be done fairly. If you fail to do so, the dismissal may be unfair and he could claim against you.
This is your basic legal position. I have more detailed advice for you in terms of the procedure you need to follow to fairly dismiss, 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
Thank you. 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.