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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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hello i work for a company the does maintainance work for

Resolved Question:

hello
i work for a company the does maintainance work for LUL. they stock various items bought from motorola to complete this service.
i have also been buy and selling used radios which some are of the same model that is used at my place of work but most are different. these have been bought from various places like usedpolice radios.com, ebay and China an been sold to indivduals on ebay
my employer have approach me saying this is a conflict of interest and could be term as gross misconduct.
do i have a leg to stand on to argue this out
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:

jusst over 9 years

Ben Jones :

How are your activities affecting your employer's business?

Customer:

my company stock various radios and comsumbles which i manage. i also sell old radios or used radios and comsumbles which i buy from china or usedpolice radios.com.

Customer:

my company look after the infrastructure of London undergroud and replaces faulty eqiupment or radios they do not sell to other company,

Ben Jones :

ok but how does you selling these radios affect your company's business - are you acting in competition with them, do they think you are taking stock from them?

Customer:

i on the other hand buy from legal websites and sell to ordinary indivdual, ask i failled to mention this to them they say i breach the company code of ethics

Customer:

they have an allegation against me that i stole from stock, this in still being investigated by the police , i show proved of where i get my item from to my employer but after an investigation hearing with them they now seen to go for the code of ethics as a gross misconduct and i could be dismissed

Ben Jones :

Have you seen this code of ethics - does it specifically mention anything about this?

Customer:

it seen they do not want to wait for the police investigation outcome before making a decision as the original allergation was to do with thelft

Customer:

as i not highly educated it hard to understand

Ben Jones :

so are they accusing you of gross misconduct because they believe you stole from their stock?

Customer:

the letter said both the allergation of thelft and failing to notify the company of my busines undertaking outside the company

Ben Jones :

ok let me get my advice ready please

Customer:

CONFLICT OF INTEREST
12.1. During your employment you shall not, at any time (whether during or outside normal working
hours):
12.1.1. become engaged or interested in any Capacity in any business or venture which is in or
is intended to enter into competition with the Company or any Associated Company;
12.1.2. carry out any public or private work outside your employment which directly or indirectly
competes with the Company or any Associated Company or which interferes with the
performance of your duties for the Company or any Associated Company, except with
the prior written agreement of the Company.

Customer:

that from my employer regarding conflict of interest

Ben Jones :

If you are accused of gross misconduct then the employer is potentially considering dismissing you. Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.


 


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



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


 


In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:


 


1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.


 


2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.


 


3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.


 


In your specific case it appears that the main allegation is one of theft. You have provided evidence that the items were legitimately purchased from other places. This is going to form part of the evidence that the employer gathers at the investigation and a potential defence you can use. However, it will mean that if there is still not enough evidence to show that all items were genuinely bought elsewhere the employer could still hold a genuine belief that they were taken from the workplace. It really depends on the investigation they conduct.


 


As to the code of ethics you need to check its exact wording but unless you were acting in direct competition with the company, giving them a bad name, etc then it is unlikely that having such a venture outside of work will be classified as a serious act of misconduct. Having looked at the wording you gave me it appears they are only concerned with something you d that is in competition with them so it will depend if what you did amounted to that.


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 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 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.

Customer:

i'm not selling to LUL or any of my employer clients

Customer:

thanks for the info

Ben Jones :

You are most welcome, best of luck with this

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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