Hello, my name is Ben and it is my pleasure to assist you with your question today.
How long have you worked there for?
since nov 2008
ok let me get my advice ready please
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:
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 and the claim must be made within 3 months of the date of dismissal.
As to making a statement we cannot draft anything for you as that is not part of our service but the best way in a disciplinary is to have notes ready about what you want to say and how you will defend the allegations as this will be done verbally, not in writing.
ok thanks, but will it be fair for another employer to, not go through a disiplinary and i have been given /or be up on a gross missconduct charge?
you mean for the same offence?
well,yes as he was caught with srap metal in is bag
the employer needs to act consistently so if someone can be accused of the same or similar offence they need to be dealt with in a similar manner but it will depend on what evidence exists so if there is little evidence in relation to one person but more for another, then one could be pursued whilst the other isn't
ok so i might have a case because they was more evidence that the employee had matieal in is bag,were i had material in my locker is that a fair point?
it could but it is more important what your employer finds in your case and how they apply the evidence there so the main advice I provided above will be the most important aspect of your case
Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?
ok thanks just one more point,weeks before this incedent fellow employees were saying that the manager was looking to get rid of staff ,do you think that has any inflence on whats happened?
Also if there is evidence to prove that i have been stealing,iam entitled to see all of the evidence?
it may indeed be linked to what is happening now - if employers need to reduce headcount they could try and find any old reason to dismiss staff and avoid paying redundancy, which means dismissing for things like misconduct. You are entitled to see any evidence that the employer is relying on in the disciplinary
ok thanks but could i say that there as been talk about getting rid off staff and thats why i think your using that against me?
yes you may do so, it is for the employer to show there was another valid reason
ok thanksand do i have to name names?
not if you do not want to
ok thanks so on what you can go what evidence can you conclude ?
so sorry , i mean on what evidence you see what decision would you come to ?
Sorry my connection dropped earlier. The information I have here will be nowhere near what the employer will have and will make a decision on. Also the final decision will depend on how you defend the allegations so to guess the outcome at this stage is not only impossible but also pointless. You have to go into the disciplinary and defend the allegations as best as you can then see what the outcome is, you then have the chance to appeal and take the matter further as explained in my detailed advice above