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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46742
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I went on 6th January till 27th January holiday for three

Resolved Question:

I went on 6th January till 27th January holiday for three weeks where I was refused permission to take.
I have a letter stating that I would not be paid for these holidays, which I accepted 18th December 1913
When I came back from holiday I received letter reference investigatory meeting, which said may result in disciplinary action, but not one word about dismissal 21january.
The first time dismissal was mentioned was in a letter dated 31st January
Had meeting without predacious with the H.R. whom offered me to take retirement at the end of March14 he gave a letter to get signed by an employment lawyer on 7th February at 16.20 pm. I did not have enough time to get it signed by the 14th February, I was called to his office at 16.30 p.m. where we had another meeting without predacious and when I did not have the letter signed he ended the meeting.
I was called back up to his office 16. 45pm where he hand me a letter and told me I was dismissed.

Have I any claim against unfair dismissal

Yours sincerely XXXXX
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.

Ben Jones :

How long have you worked there for?

Customer:

21 years this April

Ben Jones :

Why was the holiday refused?

Customer:

They thought it was to close after Christmas break But I had every job covered for the three weeks I was of I returned to work on the 6th of January to comfirm with my plumbers they understood what was to happen

Ben Jones :

ok let me get my response ready please

Ben Jones :

Whilst absence from work on holiday which has not been pre-approved can result in disciplinary action, because it would be classified as unauthorised absence, and can even lead to dismissal, the employer is still expected to follow a fair procedure and failure to do so can make the dismissal unfair on procedural grounds.


 


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.


 


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:

Ben thank you for your help I thought a written warning was ample and that would be it.

Ben Jones :

With 21 years service you do have an argument for that, but 3 weeks is also a long time for unauthorised absence, whatever the outcome a fair procedure does not appear to have been followed

Customer:

Ben thank you for your help and I did think it would have been a written warning as well as I never had any warnings or days of work in the 21years

Ben Jones :

So appeal is the first step then the unfair dismissal within 3 months of the dismissal

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46742
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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