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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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I was suspended from work as MY employer had had complained

Resolved Question:

I was suspended from work as MY employer had had complained about my work after the first disciplinary I was found not guilty of any wrongdoing. At the end of this meeting I was presented with another letter accusing me of sending a text message threating someone about one of the managers. They got hold of this message and removed me from site. It was a personal message on a personal phone to a colleague who it was not directed at. can this be used against me as it was not directed at the other person?
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.

Expert:  Ben Jones replied 1 year ago.

How long did you work there?

Expert:  Ben Jones replied 1 year ago.

Hi there. Thank you for your request for a phone call. I am unable to talk at the moment but if you provide the information requested, I will review the relevant information and laws and get back to you as soon as I can. Please do not respond to this message after you have provided the information as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Customer: replied 1 year ago.
30 MONTHS
Expert:  Ben Jones replied 1 year ago.

Many thanks. I will get back to you at the earliest opportunity.

Expert:  Ben Jones replied 1 year 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.

First of all being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.

During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.

On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.

In terms of whether the evidence can be used against you then that is indeed possible. A negative message about someone does not have to be directed personally at that person for it to be admissible evidence. Let’s say in the case of bullying (not necessarily the case here but it is a valid example), the culprit could be deliberately stirring up negative feelings about someone by badmouthing them to their colleagues – the messages or comments will not be directed to the person but can still amount to misconduct and be used as evidence. So you can see why the employer may be using these in their investigation here but remember they are still investigating so there is no guarantee it will necessarily go further.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
what you are saying that I can be sacked, but the person I sent it to is now telling every one before my hearing on the 30 th that he has had me sacked by showing the supervisor my personal tex to him, So they could not find anything wrong with my work so this is the only way that they can get at me, this was a conversation between me and him he kept that part of the tex to get me sacked, they have removed me from the site and my new supervisor is happy with my work, ok I sent a tex to a so called mate which he has used and kept it for the reason to get me sacked, in the tex I ended with haa haa so i did not mean it was just off the cuff remark ,they have made up there mind before the hearing to sack me, I know the person is not happy with me just being removed from his site and is after me being sacked so this is ok for him to do so.
Expert:  Ben Jones replied 1 year ago.

I didn’t mention anywhere you can just be sacked. You have more than 2 years’ continuous service so you are protected against unfair dismissal, therefore the employer must shoe there was a fair reason for dismissal and also follow a fair procedure. Sending a text about someone else to a third party, on its own is unlikely to be serious enough for dismissal, there has to be an ongoing campaign so to speak by you to undermine them or if the comments were made public, such as posted on social media. But the employer has to follow the fairness requirements laid down in law.

This is your basic legal position. I have more detailed advice for you in terms of the law on fair dismissals and what is expected of an employer, 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
Expert:  Ben Jones replied 1 year 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.

If there are any doubts or evidence that the above requirements 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.