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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Hi, I have been suspended from work following a defamatory

Resolved Question:

Hi, I have been suspended from work following a defamatory statement from a former employee. Whilst working together for 1 year (I as her manager), we had one disagreement because she felt I was rude to her because she was late. She has a temper and she shouted and swore at me on the shop floor. After a cooling down period, I apologised and thought that was the end of it. However, she handed in her written 4 weeks notice at beginning of March. I actually cried because I felt we had built a great professional relationship and she had been an integral member of my team. She told me she felt too old for fashion and wanted to moved on. However 1 week later she text me whilst I was in a meeting at head Office to say she wouldn't be working her notice and she would not discuss the matter further. I asked her to call me the following day but she didn't. She then called i sick for her penultimate shift. She came in for her last shift, I believe because I wasn't working that day. We had no further communication.
Then yesterday my Area Manager visited and told me I was being investigated. We had a formal recorded conversation regarding allegations my former employee had made against me, which included things which breached company policies such as wearing items of clothing and never paying for them, amongst many other things. The allegations have been exaggerated and are defame me. I have now been suspended pending a disciplinary hearing next week. I wondered what my rights are and whether I have a leg to stand on here. I don't know what to do next. Thank you.
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:

For 4 years in May

Ben Jones :

Have you been advised you are definitely facing a disciplinary?

Customer:

Yes, I've been suspended pending a disciplinary hearing, which should be some time next week

Ben Jones :

What are the specific allegations against you?

Customer:

OK, these are from my memory of the conversation with my Area Manager yesterday, but former employee seemed to have gone out of her way to seek information she wouldn't ordinarily know from other members of my team

Customer:

1) that i wore a top all day, didn't pay for it, then put it back into stock
2) that i allowed an unauthorised person to work on the shop floor because somebody called in sick and I had nobody to help me
3) that i ordered a bag from the website and returned it but kept the bag without having paid for it
4) that i allowed unauthorised people to use my staff discount
5) that i regularly wear items of clothing on the shop floor before paying for them


Customer:

She said she didn't like the way I managed the store and that's why she left, along with the allegations she has also defamed my character. When I actually make it my mission to make my store a happy, fun place for my team to be

Ben Jones :

ok and what would you like to achieve in the circumstances please?

Customer:

well I want to fight my corner, I do not want to be dismissed for untrue allegations, and I'd actually like to make a complaint in some way against her, because I believe her conduct actually makes her look like an unreliable source of information

Ben Jones :

But she has now left the company, or is she still an employee?

Customer:

No she's left, so does that mean I can't do anything?

Ben Jones :

well it does in terms of making an internal complaint - for example you could have used the grievance procedure to make a complaint against her but as she is no longer an employee you can't do that. You mention defamation but even if that is the case, such a claim is very complex and expensive, you are easily looking at a five-figure sum to proceed with the claim and it is simply unrealistic to make it. So the only real way to deal with this is through defending the disciplinary and if you are facing disciplinary action or even dismissal you will expect the employer to deal with this fairly and by following established employment rules, which I can discuss in more detail if you want me to?

Customer:

Yes please?

Ben Jones :

ok let me type all of this out

Customer:

OK, thank you

Ben Jones :

Misconduct, such as the allegations you are facing, is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.


 


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



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure; and

  • Shows they had reasonable grounds to believe the employee was guilty.


 


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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. 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 about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.


 

Customer:

Do you have to be a member of a trade union to have a representative in the hearing with you? If I chose to take a colleague, what sort of colleague should it be, or does the company decide?

Ben Jones :

Well unless you are a member of a union they would not provide you with representation so yes you would need to be a member. Otherwise it is your choice of companion if it is to be a colleague, it is not the employer who decides

Customer:

Will they take into account my performance and contribution to the business? Ie my store is regularly top performing store in company, I was recently offered a promotion, etc

Ben Jones :

if it is relevant to the allegations they can do but generally it does not mean you cannot be guilty of something if you have previously done well in unrelated matters

Customer:

ok

Ben Jones :

Don't assume the worst yet though - you have a number of opportunities to defend this and deal with it before the employer takes a final decision

Customer:

And should the colleague be of a more senior or junior level or it doesn't matter?

Customer:

Thanks, XXXXX XXXXX assume the worst naturally!

Ben Jones :

no it does not matter who they are, but they cannot be forced to attend if they don't want to

Customer:

is it beneficial to take someone? i don't know if i really want to, it's humiliating!

Ben Jones :

well it's there for support really and to have a witness if you wanted to but you do not have to - up to you really, if you have someone you trust and know they would be of help then take them but don't just have someone there for the sake of it if you do not think it would help you in any way

Customer:

ok, thank you. and the best way to defend the disciplinary is by presenting the facts?

Ben Jones :

yes, any evidence you have and also pick holes in the allegations or show that the investigation has not really uncovered anything they can point the blame on

Customer:

ok, things like letting unauthorised people use my 50% discount, I have done on minimal occasions, but so has everybody else I know who works for the company, i have only acted in the same way manner and gone by the examples that more senior members of staff and head office staff have set, despite that being against company policy - so in that sort of instance, what can i say? i've done it...

Customer:

sorry to keep going on

Ben Jones :

if the evidence shows you have done it and you know you have then obviously don't try and hide that fact or lie to cover your tracks, but provide mitigating factors as to why you did it - so for example if there is widespread acceptance of this even if against policy and generally people do this, including amnagement, it is a mitigating factor

Customer:

OK that's really helpful thank you

Ben Jones :

you are most welcome

Customer:

it's just amazing what people will do to get back at you. none of these affect the person who made the allegations, what is she getting from it, and what have i ever done to her. i'm incredulous.

Ben Jones :

I have seen it all, but sometimes people will bear a grudge and you have to pick up the pieces

Ben Jones :

However it does not impact on your legal rights as discussed abive

Ben Jones :

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:

Thanks I will

Ben Jones and other Law Specialists are ready to help you
Customer: replied 3 years ago.
Hi again Ben. I have been emailed an invite to disciplinary hearing. I have not been given 48 hrs notice, is this required? Thanks
Customer: replied 3 years ago.
Hi, I have had an email to invite me to a disciplinary, but have not been given 48 hours notice, is this required? Thanks