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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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i have been accused of making abusive and discriminatory comments

Resolved Question:

i have been accused of making abusive and discriminatory comments within the work place and i am currently under investigation i have been invited to a investigatory meeting today. i have never made such comments how do i defend myself legally if i they believe i am found guilty?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

18 months i was promoted to a new role in march this year

Ben Jones :

When exactly did you start working there?

Customer:

march 4 th 2012

Ben Jones :

Have you been told what the potential outcome of any action against you may be?

Customer:

yes if i am found of gross misconduct it will mean dismissal at which point i have a right to appeal the decision

Ben Jones :

ok let me get my advice ready please

Customer:

ok

Ben Jones :

Alleged misconduct is a common reason for taking disciplinary action. It could be due to a single act of serious 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.


 


I will discuss these requirements in more detail below:


 


1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and what resources are available to the employer. An employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.


 


2. Disciplinary hearing - if the investigation provides evidence that misconduct may have occurred, the employee should 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 statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the hearing the employee must be given the opportunity to defend the allegations.


 


3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction the employee. When deciding on the appropriate penalty, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.


 


4. Penalty - unless the offence was one of gross misconduct (something so serious that it justifies instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning. If any further misconduct occurs in the future, only then should dismissal be considered.


 


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 (1 year if they started working before 6 April 2012, as in your case) and the claim must be made within 3 months of the date of dismissal.

Customer:

They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them

Customer:

sorry i highlighted a portion of your text saying i must be given any evidence to be used against me does this have to be prior to the investigatory meeting during or after?

Ben Jones :

yes but....this only applies to a formal disciplinary hearing, you are not at that stage yet, you are still in the investigatory stage and that does not apply

Customer:

so at the investigatory meeting today i should request a copy of all evidence that has been gathered

Ben Jones :

you can ask but they do not have to supply - as mentioned you are only entitled to this once you have been informed you are to attend a formal disciplinary hearing and need to be given this evidence before you attend that hearing

Customer:

on this matter as well i have a had few issues with a member of staff making false allegations before this matter arose and i requested that the management looked into the issue.(to which they didn't) i assume they will produce the name of the person who has made the allegation today if it does indeed turn out to be the person in question it may be a case of i am being victimised and harassed also they have not produced exact dates only "around this time" which makes it very difficult for me to produce witnesses for my own defence.

Ben Jones :

if the allegations were made confidentially they do not have to give you the name of the accuser but at the same time they will have to acknowledge that you are working with limited information and as such they would need to tailor their response and what they do in relation to this. To be honest at this time it is speculation as to how much detail there is etc because it will all become clearer after the investigation and especially at the disciplinary if it goes that far

Customer:

ok thank you for your time in your expert opion and the limited information i have given how would you see this case ending i am pleading innocent i guess it would be up to the management to make the decision on what they know about myself and the accuser?

Ben Jones :

that is correct, it depends on many factors that have not even been considered yet, for example the investigation, the evidence that comes out following that, the disciplinary, your answers and defence, etc. You just have to remember you have rights and can challenge any decision taken against you, so you will have to evaluate your next steps at each stage of the process

Customer:

thank you for your time i feel a bit more reassured as to the out come

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46743
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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