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: Hi, 27 1/2 years have 2 Chief constables congratulations! I applied for a job in Serious and organised crime unit, filled in vetting papers, ticked a box stating I had never been arrested but I had in 2008 for drink driving but blew under at the station. Released Nfa. Ii ticked this box in error, I clearly knew they would know about that! I looked myself up to get details of that to disclose nut they say I signed a form saying I would only use y
Customer: Systems for a policing purpose and that wasn't!
Customer: They searched and revealed I looked at myself in 2010 when I had reported theft of milk from our tea fund this they say is another breach
Ben Jones : Is there a specific policy you have breached and does it say what breaching it could result in?
Customer: I breached data protection and they say I could be sacked!
Customer: Breach of standards of professional behaviour
Customer: I signed a form in jan2014 saying I understood computer misuse was gross misconduct but I thought that looking at myself to get details to reveal to them in a vetting process would not be misuse!
Ben Jones : Ok,let me get my response ready please
Customer: Ok thank you
Customer: Can't see yr answer
Ben Jones :
I just need to make it clear at the start that I cannot say ‘yes you will be dismissed’ or ‘no you won’t be’ because no one can tell at this stage and only the employer knows, so I cannot provide any guarantees as it could be the opposite to what I say. But I will explain the law in relation to situations like this, what the employer can and can’t do and what is expected of them.
As far as misconduct is concerned, it 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.
You have broken specific policies but you have very long service and hopefully a clean record so that should go in your favour.
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: Thank you!
Ben Jones :
You are welcome. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks
Customer: No it's fine thank you,,
Ben Jones :
ok great, thanks