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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46792
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am being called for a Disciplinary interview for gross

Resolved Question:

I am being called for a Disciplinary interview for gross negligence where some facts although true were outside of my training, skills and without any company director guidance
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. How long have you worked there for and what would you actually like to know about this?

Customer: replied 8 months ago.
I have works there for 18 years. I would like to know if i can dispute part of the claim bearing in mind I was given no instruction from director level. Also I was not trained or equipped to make the desired action
Customer: replied 8 months ago.
I am an IT manager, my company was hacked, but I was expected to locate the source and protect systems, with no tools or budget
Expert:  Ben Jones replied 8 months ago.

So did you proceed with the tasks anyway, knowing that you did not have the training or expertise to do it?

Customer: replied 8 months ago.
I did what I could, but data was destroyed. Now I am being held to account based on knowledge gained after the event
Expert:  Ben Jones replied 8 months ago.

Did you advise the employer at the time that what they were asking you to do was outside of your remit?

Customer: replied 8 months ago.
I was not given any instructions at the time
Expert:  Ben Jones replied 8 months ago.

You may indeed appeal the disciplinary allegations by arguing that you are being disciplined for matters for which you did not receive training or which you did not have the required skills. However, negligence is where you had done something when you should perhaps not have been doing it based on what you know about your skills and the job you were doing. So if you knew that the job would require specific skills and you did not have these and had not gone through the relevant training, but still proceeded with the work anyway, then that could be negligence. A reasonable person in your position would have been expected to bring these matters to the employer’s attention so if you unreasonably continued with the work regardless of this, then it could be negligence. However, if you were to proceed with the work in any event or even pressured to do it by the employer, then you would have a defence by arguing that they should not have asked you to do this work based on your experience and skills.

As you have a long service with them you will also be protected against unfair dismissal. This means they will have to follow a fair procedure and show there was a fair reason for dismissal if they actually want to dismiss. You can also challenge any dismissal if needed in the employment tribunal.

This is your basic legal position. I have more detailed advice for you in terms of the requirements of a fair procedure and what the employer must do, 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: 46792
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 8 months ago.

Thank you. A 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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. 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 about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.

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