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Thanks for your patience. Whether you were on precautionary suspension or told about it does not make any difference to the fairness of your dismissal. The same applies to you not signing anything to say that you attended a fact finding meeting – this is not a legal requirement and again makes no difference to the fairness of the dismissal.
As far as the law is concerned, 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.
This is your basic legal position. I have more detailed advice for you in terms of the options you have on challenging the dismissal and what steps you need to take, 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
Thanks. In the circumstances I would say that dismissal may have been a harsh decision, considering your record was clean and this was the first incident of such nature. So you could consider taking this further if needed, as mentioned I can discuss the nest steps required
if you could please leave your rating for the response so far then I can continue with my follow up advice, thanks
Thank you. First of all it is not possible to give you prospects of success – this is only possible if you have a full case analysis conducted which you would need to do by seeing a solicitor in person. We cannot do this just by reading several paragraphs online unfortunately.
In terms of taking this further, if you are still within time to appeal directly to the employer then you should do so. The basis of appeal would be that the outcome was too harsh and not what a reasonable employer would have done in the circumstances. You should have been issued with a warning, not just been dismissed like this.
If the appeal is rejected your only option is to make a claim for unfair dismissal in the employment tribunal within 3 months of the dismissal date.
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.
I am not sure how he can say you will keep doing this when this was the first occasion it had happened. They should have issued a warning and only if it actually continued happening, only then should they have considered a dismissal. The training point is also relevant so use all of these to challenge the dismissal. I am going offline now so if needed will respond in the morning, many thanks