The legal procedure is not s much in relation to what the employee does but the employer. All the employee can do is answer the allegations and try to explain why they have not done anything wrong. That would depend on what they are accused of and what actually happened. The law really looks at the procedure the employer has followed in order to determine the overall fairness.
Alleged misconduct is a common reason for taking disciplinary action against an employee. It could be either due to a single serious act of misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
· Conducts a reasonable investigation
· Follows a fair disciplinary procedure; and
· Shows they had reasonable grounds to believe the employee was guilty
In addition, the employer is expected to follow the ACAS Code of Practice on Disciplinary and Grievance procedures, which can be incorporated into their own disciplinary policy. Altogether, it means that a fair disciplinary procedure should be conducted as follows:
1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee can be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a colleague.
3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them.
4. Penalty – this has to be a sanction, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee is issued with a written warning for a first offence.
In summary, the requirements of proof as not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that the penalty was one that a reasonable employer would have taken in the circumstances.
If there is evidence that the employer has not followed a fair procedure as outlined above, a grievance can be submitted to the employer to formally complain about these issues. If a decision has already been taken 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 termination.
Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss his legal rights in taking this further in the event they dismiss him. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you