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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49509
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My son suffers from depression and anxiety and has been

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My son suffers from depression and anxiety and has been referred to East Sussex Health & Mind for ongoing treatment. A few weeks ago he was working as a catering assistant on a weekend shift at his place of work, Moira House Girls School, Eastbourne, when he was subject to a complaint about the state of the food from one of the House Mothers who told him “this food is sh*t, I wouldn’t feed it to my dog. He became very agitated which resulted in him waving his arms around and talking loudly, something he does when stressed. He was suspended on full pay awaiting a disciplinary investigation and was asked to attend a further meeting today at mid-day, which he did. As the school is on half term when he turned up the receptionist appeared to be surprised and stated that she had no knowledge of any meetings arranged and that one of the attendees was in fact away in Brighton. Eventually, after about 45 minutes waiting the two school representatives turned up and the meeting did convene, however, when they realised that my son was on his own and not supported by anyone they cancelled the meeting and asked him to return tomorrow with his mother, extending the amount of time he is in limbo not knowing what is happening. Other points to note are that at the time of the complaint about the food he and one other catering assistant were the only members of the catering team available, there was no one in a position of authority to deal with the complaint, so he was in a position he should never have been in, in addition a member of staff has made an allegation that he made inappropriate sexual comments to her, something he refutes 100%, on another occasion he had to deal with two girls running around out of control one with a kitchen knife in her hand, again no management dealing with the situation, and finally on a number of occasions he has been on breakfast duty over a weekend and has been confronted by semi-clad teenage girls in the dining area, this should not be allowed and he has made his concerns known but nobody seems capable of dealing with it. We just wonder if he has a case against the school should he find himself dismissed following tomorrow’s meeting.

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

How long has he worked there for?

Customer: replied 3 months ago.
Approximately 9 years

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and 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 respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Thanks for your patience. Alleged misconduct, such as what happened here, 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. Whilst his condition could be a defence to an extent, it would not provide an automatic defence, although it can be used as a mitigating factor.

In summary, the requirements of proof are 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.

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 the right he has in the event this results in dismissal. 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

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a quick second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. In the event that he is dismissed you may consider an unfair dismissal and disability discrimination claim in the employment tribunal. Before any of this he should appeal directly to the employer using the dismissal appeals procedure which he should be advised of.

Before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300(###) ###-####