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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Could you advice please Q1 I have a bar steward who has had

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Could you advice please
Q1
I have a bar steward who has had stock checks down 3 months in a row when carried out by a external accountant even though we have allowed for variance month on month. Could he be suspended or dismissed due to this? He is the only person responsible for the stock.Q2
We are also having issues with his managing the bar and cleaning staff with health and hygiene behind and around the club the bar area. I have put in place support mechanisms for him, with detailed cleaning Rota's in place by my self who took over two moths ago, we have hired extra cleaning staff for deep cleaning to set the standard to show what was expected from him and his team , this seems to have had no effect which we believe is due to attitude and and aptitude along with complacency which could be due to Drinking on and after duty.Can we dismiss him on gross miss conduct on the above? Before investigation..
Submitted: 9 months ago.
Category: Employment Law
Expert:  Ben Jones replied 9 months ago.

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

Customer: replied 9 months ago.
Could you advice please:
Q1
I have a bar steward who has had stock checks down 3 months in a row when carried out by a external accountant even though we have allowed for variance month on month. Could he be suspended or dismissed due to this? He is the only person responsible for the stock.Q2
We are also having issues with his managing the bar and cleaning staff with health and hygiene behind and around the club the bar area. I have put in place support mechanisms for him, with detailed cleaning Rota's in place by my self who took over two moths ago, we have hired extra cleaning staff for deep cleaning to set the standard to show what was expected from him and his team , this seems to have had no effect which we believe is due to attitude and and aptitude along with complacency which could be due to Drinking on and after duty.Can we dismiss him on gross miss conduct on the above? Before investigation..
Expert:  Ben Jones replied 9 months ago.

Apologies for the delay. Do you have any formal procedures in place with regards ***** *****?

Expert:  Ben Jones replied 9 months ago.

Also, how long has he worked there?

Customer: replied 9 months ago.
He has worked for 5 years and he has already received a written final warning 8 months ago which ends in October 2016
Customer: replied 9 months ago.
He is also possibly under investigation for fraudulent activities we hav called the police to investigate..
Expert:  Ben Jones replied 9 months 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 9 months ago.

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

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
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 9 months ago.

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.

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