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Ben Jones
Ben Jones, UK Lawyer
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Employed as a ticket seller on trains. same night of scottish

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employed as a ticket seller on trains. same night of scottish referendum result when spoke with some lads on train about 'yes' or 'no' debate for about 5 minutes. spoke about number of issues and then spoke about immigration. unbeknown to me, one of the lads used his phone to record and post on his website 8seconds of our conversation. i am heard saying 'dae a f**king need immigrants, overun ' and then ' honestly, place is overun and its guaranteed that they are bringing mair in, so how's that gonnae benefit'. I was reffering to Alex Salmonds statement that he was looking for 24,000 immigrants a year coming in to boost the Scottish economy. I was sacked for gross misconduct. your views please of possible result of employment tribunal. my employer had no policy of political activity in the workplace.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long did you work there for and when were you dismissed?
Customer: replied 2 years ago.

worked for over 10 years. dismissed on october 2014. I am led to believe decision was made by H R. and message was sent down to managers.

Expert:  Ben Jones replied 2 years ago.
I am afraid you are too late to make a claim about this or take it any further. To be able to claim unfair dismissal, a claim must be submitted in the employment tribunal within 3 months of the dismissal. This is a strictly applied deadline and we are now some 7 months after the dismissal so you are 4 months out of time – this is way too long. Extensions are very rarely given and are usually for some serious unforeseen circumstances, such as if you were hospitalised and that meant you were not in a position to submit your claim. However, if you simply did not know of the deadline then that is unfortunately not a good enough excuse and you cannot get an extension for that. So assuming the are no special extenuating circumstances then you are out of time and you would not be able to take the matter any further. I am sorry if this is not the answer you were hoping for but I am afraid it is your legal position.
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
Customer: replied 2 years ago.

i have made a claim to the employment tribunal, this was done within the time range and we are now at the stage of going to pre-hearing. i was only looking for your views on the merits of the case and would it be worthwhile paying the second fee. i am arguing my case on freedom to hold political views.

Expert:  Ben Jones replied 2 years ago.
Sorry it was not clear that you had actually made a claim. It is unlawful to dismiss an employee for holding a political opinion but even if your comments were made as a political opinion, it still depends in the employer’s investigation and what they reasonably believe happened. If they are only working from a short video and your own evidence then they may not have information of the full picture to allow them to make a proper decision which they may have made had they witnessed the conversation or had a full video of it.
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, then an unfair dismissal claim could be made. I cannot tell you what the merits of your claim are as I do not know what the employer’s investigation found and how they formed the opinion to dismiss. But the above is what A tribunal would look at when deciding your case. Hope this clarifies things a bit more?
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