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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47590
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I am facing a disciplinary hearing theft of red

Resolved Question:

I am facing a disciplinary hearing for supposed theft of red diesel from my workplace...I have provided evidence to my emplyers. They do not have any proof that I have stolen, no one has seen anything only vague statements from other employers about what has gone missing..They are now going back to over a year ago, and because I cannot provide redceipts for when I bought diesel they have decided I must have stolen it.. Any ideas as to how to proceed would be appreciated. Thank you
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

I presume you are not guilty of the allegations?

Customer:

No...I had run out of diesel on way to work very early one morning..on a very secluded and empty country road.I had a gerry can of red diesel in my van which I put in so I could get to work..Revenue and customs did a spot check that day..we have red diesel at work..I was found to have the diesel in my fuel tank..I explained why it was there..I have stationery engines as use it for them..I had purchased the fuel in Oct 2014 and the can had been left in my van..It was not even a full one..I have shown work I had pur hased normal diesel 2 days previously, Had driven to Nottingham for weekend, driven home late Sunday night but ran out before I got to petrol station in the morning..They have investigated and have discovered fuel had been going missing over a year ago, altho manager on the farm has said in a statement that nothing gone missing since then..

Ben Jones :

ok thanks let me get my repsonse ready please

Customer:

Sorry, didnt mean to send twice..I have 30 years previously unblemished work experience, have never stolen anything. No one has seen me take anything from work. A work colleague has been sacked this week for the same offence but he has been taking it..There is only a suspicion that as it has gone missing I must have taken it as well..

Ben Jones :

Misconduct 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. In this case with little direct evidence and 30 years of clean service I would say that dismissal would be an unreasonable outcome.

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:

Is there anything else I can do/say to them, I have another meeting this afternoon, although to be fair I feel they have made up there mind and will sack me...If that happens I do intend to appeal..I really do feel that I am being made a scapegoat and being held up as an example..

Ben Jones :

there is only so much you can say with the available evidence. All you can do is maintain our innocence and provide anything that may exonerate you but I understand that is now limited. There is no other way to defend such allegations. If the employer has made up its mind there is little that can be done about that so it then becomes a matter of dealing with the next steps as explained above

Customer:

thank you

Ben Jones :

you are welcome

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