Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Please can you tell me more about the circumstances that have led to the alleged misconduct? Please can you also tell me how long you have worked there. Thank you
Hi there. I do apologise. My response there was sent to you by accident.
Thank you for your response; please leave it with me. I am in court today so will prepare my advice in a while and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.
Many thanks for your patience. You are correct that the Human Rights Act can take precedence over the ACAS Code. The Code is just non-statutory guidance which an employer should follow when they take disciplinary action. If they fail to follow it then it does not mean they have broken a law, but a tribunal can increase the claimant’s compensation if the employer has unreasonably failed to follow it.
On the other hand, the HRA is actual legislation, it is an Act of Parliament so it could take precedence over the ACAS Code. However, I do not think you can use this as a defence not to attend a disciplinary meeting. Whilst I appreciate that the HRA provides for the right to private life, it is jot really intended for such cases. You don’t actually know to what extent they kay pry into your private life – a blanket refusal to attend based on what you think MAY happen is not really going to be seen as a reasonable response by you. In these circumstances you risk the employer continuing with the disciplinary in your absence which could result on a worse outcome for you. I suggest you still attend but if they start asking too many private questions then just refuse to answer them based on it being irrelevant and basically your business. However, do not attempt to evade the meeting by using the HRA as that is unlikely to be seen as a reasonable excuse in the circumstances.
This is your basic legal position. I have more detailed advice for you in terms of the options you have should the disciplinary proceed and you disagree with the outcome, 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. If you are not dismissed then you can appeal the outcome directly with the employer. If the outcome is a dismissal 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, subject to having at least 2 years continuous service.
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:
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.
Hello Stephen, whilst you can appeal the warning, there is probably not much you can do to take it further at this stage (I doubt you will have a case for constructive dismissal here). So even if you do not agree with why you were reprimanded, please consider that objectively speaking this can be a disciplinary issue so coming out with a warning is not so bad and it will hopefully ensure that such issues are not repeated in the future.
You are welcome, all the best