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Ben Jones
Ben Jones, UK Lawyer
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Good morning. Some time ago a colleague at work claimed that

Resolved Question:

Good morning. Some time ago a colleague at work claimed that they could smell alcohol from me at 10:00am. Another 2 supported that claim. One of those was my manager. Having had one glass of wine the previous evening and that being the only alcoholic drink I had in the previous 62 hours, I asked to be tested for alcohol. That was refused.
At the disciplinary hearing taking place 3 days ago, I requested that I should undertake a polygraph test, to prove that I was telling the truth. I was not allowed one.
I just received notification from my employer that I am been dismissed because of the claims that I smelt of alcohol. Are the refusals to my requests for a test and for a polygraph, acceptable in law? Can I be lawfully dismissed in the circumstances?
Many thanks.
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?
Customer: replied 2 years ago.

Hello Mr. Jones.

I worked for the organization for 10 years. My age is 56.

Thank you.

Expert:  Ben Jones replied 2 years ago.
There is certainly no requirement on an employer to allow you to take a polygraph test – this is not standard in employment disciplinary proceedings and there is no law that states an employer should go to such lengths to determine if a dismissal is fair or not.
The way the fairness of a dismissal is judged is through established principles through common law and legislation. 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
Ben Jones and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Many thanks for your comprehensive answer. I am satisfied beyond my expectations with the information you provided.

Best regards.

AJ

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