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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48172
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was wanting some advice my son is 25 and worked for the

Customer Question

I was wanting some advice my son is 25 and worked for the same company for over 7 years he has a clean record at work and never been in any trouble my brother used to be director of this company and left earlier this year one of the floor manager's has always had a problem with my son cause of the position of his uncle within the company and made his life hard at time since my brother left he has gunned my son more I am disabled and had an hospital appointment on Monday which my son was attended he forgot until last minute because he couldn't find management he came out of work one hour early which was wrong and he has but his hands up to this this is the first time he has done anything wrong he had an investigation on Thursday to explain what happened and has now received a letter he has a hearing next Tuesday they are classing it has gross misconduct which puzzles me with a 7 year clean work record I was just wondering where he stands and any advice as gross misconduct could mean been sacked which I don't believe what he has done warrants the disciplinary he his facing thanks
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

When your son left work an hour earlier than usual, was there anyone else available to do his job or would his employer have had to find a replacement at short notice?

Customer: replied 1 year ago.
anyone could do his job my son his often removed from his position to go out driving for company and other tasks he works hard when this happens they rarely get anyone to cover him and if it wasn't covered it wouldn't impact on the running of the company
Customer: replied 1 year ago.
Don't want a call just yet it's just guidelines of the fact it could be gross misconduct
Expert:  Ben Jones replied 1 year ago.

Hi there. Thank you for your response. I will review the relevant information and laws and will 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. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Thanks for your patience. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.

In this case he left an hour early, it is not like there has been an ongoing issue with him missing work or that he had been warned previously not to do it and still continued doing so regardless. Taking into account his length of service and his clean record, it is unlikely that this incident alone will amount to gross misconduct, something so serious that it justifies a dismissal. Therefore, if this results in a dismissal he should certainly consider challenging it and taking it further.

This is your basic legal position. I have more detailed advice for you in terms of the rights he has on taking this matter further, 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.

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.

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:

https://ec.acas.org.uk/Submission/SingleClaimantPage

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.