How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ben Jones Your Own Question

Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45353
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

An employee has been found to have committed an act of gross

Customer Question

An employee has been found to have committed an act of gross misconduct, we need to dismiss this employee, an investigative meeting yesterday. At the employees request follow up disciplinary meeting was scheduled for this evening. At the last minute the employee sent an email refusing to attend stating she hadn't been informed of the reasons for the disciplinary. Which is false as she attended the first meeting and arranged with us, the follow up by telephone.
She included in her email a statement of giving us notice, is this not superseded by her current suspension and the ongoing investigation into gross misconduct?
Does the suspension/investigation period have to be for any particular period of time? And do we have to pay her for any or part of it?
Can we summarily dismiss her having proof of her guilt in the case of gross misconduct in the form of a written statement from a witness?
Submitted: 5 months ago.
Category: Employment Law
Expert:  Ben Jones replied 5 months ago.

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

Expert:  Ben Jones replied 5 months ago.

How long has she worked there?

Customer: replied 5 months ago.
Hello Ben, she has worked for for 2 and a half years
Expert:  Ben Jones replied 5 months ago.

Hi there and 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 5 months ago.

Many thanks for your patience. First of all the fact that someone is under an investigation or on suspension does not prevent them from handing in their notice. They continue being employed as normal during that period and as they are not under notice of termination by the employer themselves, they are free to resign at any time. Of course they must generally serve their notice period, so if in that time the employer wants to continue with the disciplinary they can do and they can even dismiss for gross misconduct before the end of their notice period. The reason for termination would then be the dismissal rather than the resignation.

However, a fair procedure must be followed. The requirements of a misconduct dismissal are contained in the ACAS Code of Conduct. 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.

It is possible that a dismissal can take place based on witness evidence from a single person but that would not remove the requirement for an overall fair procedure being followed. So a full disciplinary process must still be applied and followed properly to ensure that the dismissal is fair and that the employer has a reasonable defence in the event an unfair dismissal claim is made.

In terms of payment during the suspension and investigation, the employee is entitled to their full pay for that period, unless there is a very clear and specific clause in their contract stating that periods of suspension are unpaid.

This is your basic legal position. I have more detailed advice for you in terms of the procedure that must be followed 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: 45353
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 5 months ago.
Thank you Ben, we have recieved further email response from the employee -
Further to my email this afternoon confirming my resignation having seeking legal advise, I no longer need to attend any hearings or investigations. Please advise if you require me to work my three weeks notice as in my resignation letter sent today 16th August 2016, or please advise if you wish to terminate my contact with immediate effect following my resignation.Please advise when would be a suitable time to return keys and any other items belonging to the company, if you do not require me to work my 3 weeks noticeThis prevents us from following fair procedure, may we now dismiss her or are our hands tied to accept her resignation?
Expert:  Ben Jones replied 5 months ago.

Thank you. It is nonsense that she does not need to attend any hearings or investigations because she has resigned. She is still an employee until her employment terminates and is bound as usual during her notice period. How you proceed is up to you – what you can do is let her resign and pay her the notice period she is due, then leave it at that. You can instead request that she works her notice period and in the meantime you proceed with the disciplinary matter and dismiss her. The issue with dismissing is that she can consider making an unfair dismissal claim if she thinks the dismissal was unfair or an unfair procedure was followed. It is then for you to prove that everything was done fairly and reasonably. Instead, if she resigns she can only make a constructive dismissal claim and in that case it is for her to prove that there were serious enough issues t justify her resigning and claiming – such claims are much more difficult to win by employees so in a way you just want to let her resign and not proceed with the disciplinary or dismissal because it will make things easier for you in the event she decides to take this further.

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Ben Jones

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10492
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
< Previous | Next >
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10492
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    41
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Laywer

    Satisfied Customers:

    49
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/taratill/2010-03-09_111600_phpsik04M_c2AM.jpg taratill's Avatar

    taratill

    Solicitor

    Satisfied Customers:

    671
    15 years experience of advising on employment law matters
  • http://ww2.justanswer.com/uploads/LI/li/2014-12-19_134845_lexughes.64x64.jpg Alice H's Avatar

    Alice H

    Solicitor Advocate

    Satisfied Customers:

    99
    Partner in national law firm with 20+ years legal experience
  • /img/opt/shirt.png tdlawyer's Avatar

    tdlawyer

    Laywer

    Satisfied Customers:

    53
    Lawyer with 9 years experience in employment related issues.