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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47355
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hello my husband has been sacked from work for offensive (very)

Resolved Question:

Hello
my husband has been sacked from work for offensive (very) comments he wrote about his managers in his diary. This diary was not provided nor required by his employers, he left it out at work and a co worker took it, photocopied the relevant pages and then took the photocopies to a manager mentioned in the diary who then removed the diary and photocopied the whole of it and a few days later suspended him and then at the final meeting sacked him. I know you don't have much information but I would really like to know if they can do this, he has worked there for 12 years and has never even had a telling off for anything although I doubt that is relevant.
Many thanks
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 :

What do you hope to achieve in this situation please?

Customer:

Just really if it is worth appealing the union is a bit slow

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

Customer:

Thanks

Ben Jones :

Many thanks for your patience. Misconduct, such as the issues in this case, 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. Your husband has nothing to lose by appealing with the employer, the worst that could happen is they reject it and the dismissal stands. 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:

Thanks for that, there is absolutely no doubt that my husband is guilty and that any reasonable employer would sack him, however I'm curious to know how they can justify how they came to know of his misconduct - snooping into an employees pesonal diary , he is a stone mason he doesn't need a diary for work. If he had left his phone at work would they be entitled to read texts copy them and then sack him? Anyway thank you.

Ben Jones :

But it was a colleague that did that, not the employer snooping on him?

Customer:

True but I still think it's unethical but that does sound hipocritical, I do think though that as they knew that they themselves would not be allowed to behave like that they should not allow a coworker to do so especially as they have refused to disclose who did originally take it. I think they are possibly thinking the same way as me because they are insisting that the diary is a works diary because it is at work, all his co workers have supported him in their statements that none of them use a diary and the fact that is is at work is irrelevant.

Ben Jones :

I understand but unethical does not necessarily mean unlawful. If they believe the coworker should not have done this they can deal with him separately but it does not remove the fact that the comments were made

Customer:

I understand , and I know my husband was very wrong to do what he did but to go looking for evidence is very underhand I think but like you say not unlawful, it would be too easy for employers to get willing employees to snoop on their behalf. Oh well we will see what happens, thanks again at least I understand a bit better where the law stands - basically as long as they get evidence it doesn't seem to matter hoe they get it, good job the police can't act like that!

Ben Jones :

yes criminal and employment law are quite different. Go through the appeal for now and see what happens then evaluate your options

Customer:

Thanks goodnight and I presume i press some button to make payment. Thanks again.

Ben Jones :

yes you can just rate the service with the smiley faces and then that will close the question, thank you

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