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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46233
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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can I be sacked after 11 years service for one small accident

Resolved Question:

can I be sacked after 11 years service for one small accident with a forklift truck, no injuries involved.
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. Could you explain the situation a little more?

Customer:

I am contacting you on behalf of my son who is not able to communicate via the email system.

Ben Jones :


Its your responsibility to keep it continuously insured. If its not insured and not SORNed then you are liable.

If it is insured but you are not a driver upon the insurance then thats fine as long as you don't drive.

Ben Jones :

Okay. So can you explain a little more?

Ben Jones :

I do apologise about the earlier information. It was destined for another post!

Customer:

He has worked for a company called Key Lintels at Swadlincote in Derbyshire, he has worked with them for 11 years as a ,machine operator, and for aprrox the last 2 years as a forklift truck operator, He received a written warning around 3 years ago but seems to have kept his nose clean of late. He has been suspended for the last week since this accident happened, without pay and has today been given his notice. I am not sure if it was verbal or letter. He is absolutely devastated, his age is 45. Not particularly bright person but is a very genuine fellow

Customer:

His time keeping has been outstanding with this company.

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Ben Jones :

And just before I finish, what was the alleged incident which they used to sack him for?

Customer:

He knocked something over when the load on the forklift truck protruded out eachside of the machine. Apparently he should have stopped and made sure no one was injured, but he stopped the truck and put his thumb up to one of the workers and the reciprocated in the same way. Later one of them went in the office and reported him.

Expert:  Ben Jones replied 3 years ago.
This was an alleged act of misconduct, which 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 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.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:


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Customer: replied 3 years ago.

By the way ben, I believe he should have had a refresher course on Forklift truck driving, he has been asked but noyhing has been done for a refresher course but other people have been given this training and I believe in preference to Matthew.

Expert:  Ben Jones replied 3 years ago.
That would be relevant if there was a policy that entitled him to this or if he had identified issues with his operation of forklift trucks and had asked them, to provide more training and that resulted in the incident
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46233
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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