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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44908
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am a Property Manager and part of my duties, In between periodical

Customer Question

I am a Property Manager and part of my duties, In between periodical site visits, is to instruct minor repairs. It is an extremely busy and high pressured job and I have not been able to get out on site visits as frequent as I should. When the repair invoices come in I have to ensure they dont pile up and pass them for payment and then they get paid. I have recently discovered that One particular contractor I have used a great deal has not done quite a few of the said works on the invoices and they have already been paid. Therefore all of his invoices that have been paid have come under question and it is quite a substantial amount of money that has been paid, iet £61k.

My up Line Manager is saying I'm at fault for not checking the contractor's work particularly the Health & Safety works and attending site more often and has indicated my job is at stake. I used to complain at the team meetings that I am overloaded with work as I only work 4 days a week and recently we are not allowed to go straight on site Monday mornings or late Friday afternoons, we are constantlying being pressed on getting things done adminstratively, budgets, dealing with often complicated, challenging issues, writing letters, residents meetings, etc.

I've been in this company for 9 years and used lots of contractors and have never had to question whether they have actually done the work and this is unprecedented. I would appreciate your advice as to where I stand and wonder if they could fire me due to negligence?

Regards
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Is there anything in your contract about the frequency of site visits you are expected to make?

JACUSTOMER-3h7w9eld- :

Different Management contracts require different frequencies, ranging from monthly, 6 weekly or quarterly visits

Ben Jones :

Sorry I was offline by the time you had replied. As you have more than 2 years' service with the company you will be protected against unfair dismissal. This means that to justify that dismissal was a fair action in the circumstances they need to ensure there was a potentially fair reason for dismissal and also follow a fair procedure.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:

  • Carries out a reasonable investigation;
  • Follows a fair disciplinary procedure;
  • Has reasonable grounds for believing the employee was guilty; and
  • Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, 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 produces evidence that misconduct may have occurred then 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 disciplinary 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, they can go ahead and dismiss. When deciding on whether to dismiss, 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 in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered.

So the key here is whether you were guilty of the seriousness of offences you are alleged to have committed. There was an expectation to check the work of contractors but you have frequently highlighted the difficulties with doing this and that it is often not possible to do so due to the pressures of the work and the amount of other tasks you have to do. Also this may not have been a priority due to the lack of any problems with this in the past - after all it was not a common occurrence at all and not a risk area in the business. Had you known that this posed a risk and did not ensure that you did what was expected of you then you could be accused of serious negligence but there will be mitigating circumstances in this situation. As such it could be argued that this was not gross misconduct and should not result in dismissal, although you could still end up with a warning.

If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected and this has resulted in dismissal then a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

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