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Ben Jones
Ben Jones, UK Lawyer
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Please can I get some legal advice regarding a Gross Misconduct

Resolved Question:

Please can I get some legal advice regarding a Gross Misconduct Meeting that I have invited an employee of mine to tomorrow morning. She has come up with some last minute questions and I cannot get hold of my regular solicitor to help as it is a Sunday?
Thank you
Tracie Giles
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Please provide more details of the assistance you require in relation to this?
Customer: replied 1 year ago.

Hello Ben,

I run a beauty clinic in Knightsbridge which is quite high profile. I employ a receptionist / coordinator who looks after our bookings and front of house.

It came to my attention that she was working for the Doctor who is an occasional contractor in my clinic which directly contravenes her contract of employment, it also gave him access to our database. He has since been told to leave.

This employee has been with us for 7 months. She is reliable and pleasant however she is weak.

I suspended her after an unplanned meeting 10 days ago whilst she was working on the premises when it came to light that she was not only working for him (paid or unpaid as they both contradict each other) but she had also gained access on his request 'out of hours' on a Sunday and without our knowedge. Apparently to collect something he had forgotten from his Saturday clinic.

Additionally she was seen all over social media supporting his brand at a 'Bloggers Event' with some of the same media Bloggers that support our brand on a Sunday.

Her contract is with my brand and does not allow for any competing work or to work without our express permission paid or unpaid for anyone else.

Since then the Doctor has been threatened by myself to be reported to the GMC for his 'irratic' behaviour for various unrelated reasons but potentially quite serious ones and I am trying to distance my brand from him as much as possible.

I suspended Annice for the week last week and then invited her for a Disciplinary Meeting tomorrow morning. Beneath my explaination and for ease of understanding I will copy and paste the email trail and my proposed draft email response to her tonight.

The problem I face is that whilst she is fully aware of the reason for the suspension and the meeting, I did not put this in writing although she did send me a letter admitting she was in breach of her contract but was very sorry but she hadnt read her contract properly (evidenced).

I also referred to the meeting and a 'meeting' and not a 'hearing'.

She has emailed us over the weekend when my HR is unobtainable and I am not sure how to proceed.

It would further damage my buisness if she is able to bring another employee into the meeting as seems to be outlined by ACAS as she is not a member of a Trade Union. Already we are trying to limit the damage with the moral of the others as she was a poplular member of staff as she has a very friendly manner.

I dont quite know how to proceed at this late hour. Please see the email trail below with the upper most part being my unfinished / unsure response.

Thank you

Tracie Giles

Dear *****cie,

This response is to clarify the reason for the scheduled meeting tomorrow and to reiterate our email of 7th July 2015 and verbal discussion of +++++++ , additionally to answer questions posed your in your email yesterday Saturday 12th September (out of office hours).

You were made fully aware of the reason for the ‘paid suspension from service’ and that was to investigate the possibility that you had potentially committed gross misconduct of your contractual obligations to my company. As explained to you during our meeting on ++++++ and again during our telephone discussion it was to investigate the potential allegations of your gross misconduct, the details of which were discussed and are outlined below.. You were made aware of the gravity of the situation and the stress your own actions have put on us as a company and a brand. I explained that I found it incredibly upsetting and stressful personally and professionally to have to investigate a person who I like working alongside and is always so pleasant and friendly.

You have had a fair and reasonable amount of time to ask the questions you now pose during office hours. Unfairly you have asked these questions out of office hours and at a weekend when I do not have your personal file in my possession.

I have attached the Employee hand book which outlines quite clearly the companies disciplinary procedure and was given to you by email on ++++++.

We have now completed our investigations and the purpose of the meeting tomorrow is for you to attend a disciplinary hearing at 9am on Monday 13th July at the clinic. I will chair the hearing and a note taker will also be present.

The purpose of the hearing will be to discuss your alleged Gross misconduct.

We believe your conduct, to be gross misconduct when viewed in the light of the employer's policies, rules and standards.

It is alleged that:-

  • You have been working for Dr Esho out of your contractual hours and additionally on at least one occasion at another place of work and for another person at a high profile ‘Bloggers Event’ seen all over Social Media and for another Brand. (SCREEN GRAB)

  • Either Paid or Unpaid, this work contravenes the terms of you contract and is in breach of the same. (******SUPPLY HER LETTER)

  • You have admitted to entering the building without my permission or knowledge on a Sunday out of hours at the request of the doctor. This was not bought to my attention until after the event.

  • You have additionally allowed the doctors continued access to the companies premises without my permission until at least 9pm one Saturday night by your own admission and not reflective of what was in the clinic diary which was under your control.

  • You have been intending to attend meetings with the Dr regarding my company again out of our business hours and without our knowledge or consent. ( Letter Reviv)

  • You have the right to be accompanied at the hearing by a fellow worker or trade union official if you so wish. Your companion will, if you wish, be able to put your case; sum up your case; and respond on your behalf to any view expressed at the hearing. He/she will also be allowed to confer with you during the hearing. However, he/she will not be able to answer questions your behalf.

  • Depending on the facts established at the hearing, the outcome could be dismissal, but a decision on this will not be made until you have had a full opportunity to put forward your version of events and the hearing has been concluded.

  • If you are unable to attend the hearing, you must inform us of this fact as soon as possible. If your chosen companion is not available, you may specify another date for the meeting up to five working days later.

From: Annice Ling [mailto***@******.***]
Sent: 11 July 2015 13:49
To: TracieGiles
Subject: Nature of Disciplinary Meeting

Dear Tracie,

This week has been very difficult for me and has caused me a lot of anxiety and distress. I have never experienced anything like this before.

Please can you let me know what the nature of Monday's meeting is?

Is it a disciplinary interview, as part of your investigation or is it a disciplinary hearing?

If it is a disciplinary hearing then please can you supply me with the relevant evidence which led you to suspend me on the grounds of gross misconduct.

And please can you supply me with a copy of the companies disciplinary procedure.

Thank you

Yours sincerely

Annice ling

Sent from my iPhone

On 11 Jul 2015, at 10:50 am, TracieGiles <*****@******.***> wrote:

Annice Ling





GU26 6UB

Friday 07th July 2015


Dear *****ice,

In accordance with our company’s disciplinary rules and procedures, and following our conversation on Sunday 5th July where I outlined the reasons leading to your suspension, an investigation has since been carried out into the allegations of gross misconduct made against you. I would like to invite you to a disciplinary meeting at 9am on Monday 13th July. I can confirm that you were suspended on full pay for a period of five working days in order to allow us to conduct the investigation impartially and fairly.

Please will you confirm that you will be at the clinic for the aforementioned meeting. In the meantime, should you have any information that might be of assistance to our investigation or wish to discuss anything, please contact me.

Yours sincerely,

Tracie Giles

Expert:  Ben Jones replied 1 year ago.
Does she have a contractual disciplinary policy which states what procedure you must follow in the event of disciplinary action?
Customer: replied 1 year ago.

Yes it is in a standard disciplianry hand book:

Section 4 – Disciplinary & Grievance Procedures
4.1 Disciplinary Procedure
 The Company strives to establish an enterprise committed to the highest standards of quality, productivity and competitiveness.
 The Company seeks to attract, retain and motivate quality people by providing an effective working environment, which supports quality results.
 To this end the Company believes in the importance of clearly communicating the performance standards and behavioural conduct that are expected of all employees.
 Where conduct or performance falls below the acceptable standard, the disciplinary procedure set out below will be used.
 This procedure does not form part of employees’ terms and conditions of employment and may be subject to change at the discretion of management, and may be disregarded or departed from at the absolute discretion of management.
 Management is responsible for maintaining behaviour and performance standards and discipline throughout the business.
 Employees are responsible for their own actions and for abiding by Company rules and standards of conduct.
 Counselling will take place in an appropriate location using external support as necessary.
The following principles will apply at all stages of the disciplinary procedure:
 Minor cases of misconduct and poor performance may be dealt with informally through advice, coaching, re-training and counselling and not through the formal disciplinary procedure.
 No disciplinary action will be taken until a case has been subject to a full and separate investigation.
 At every stage an employee will be advised of the nature of the complaint against them in writing and the evidence to support such allegations, prior to disciplinary proceedings being taken. In certain circumstances, this principle may be modified to maintain the confidentiality of witnesses, as appropriate in the circumstances of the case. The employee will be issued with copies of evidence and/or notes of proceedings as appropriate.
 An employee will be given full opportunity to state their case.
 At every formal stage where a decision is taken that may result in disciplinary action being taken or appealed an employee will have the right to make a reasonable request to be accompanied. All requests for a companion must be reasonable, for example, if an employee requests a companion and there may be the appearance of a conflict of interest arising, or the requested companion cannot attend within a
reasonable time, that request may be refused. Everyone asked to be a companion may decline to do so if they wish, but any employee acting as a companion has the right to be paid normally for the time spent in work as a companion. If the chosen companion is a Trade Union representative, the Company will normally liaise with the Trade Union to verify the credentials of the Companion. Please also refer to 4.12.
 An employee will not normally be dismissed for a first disciplinary offence except in the case of gross misconduct. Certain situations may arise where dismissal is necessary to maintain standards in the workplace or to ensure confidence in the Company’s reputation is maintained. Employees in the first year of employment may be dismissed with notice at any time if their continued employment is not beneficial to the Company.
 Disciplinary decisions will be confirmed in writing.
 An employee has the right to appeal against a disciplinary decision.
4.2 Disciplinary Levels
 First Formal Warning
For minor offences or if conduct or performance does not meet acceptable standards, a First Formal Warning is given by the employee’s immediate manager, or other nominated manager, and confirmed in writing.
 Second Formal Warning
For more serious offences, or if conduct or performance does not improve, or if different or more serious problems arise, a Second Formal Warning is given by the employee’s immediate manager, or other nominated manager, and confirmed in writing.
 Final Formal Warning
For offences of serious misconduct, or if conduct or performance does not improve, or if different or more serious problems arise, a Final Formal Warning is given by the employee’s immediate manager, or other nominated manager, and confirmed in writing.
 Dismissal with Notice
If despite a Final Formal Warning, conduct or performance does not improve, or if different or more serious problems arise, the employee will be dismissed with notice by their immediate manager. The Company, at its discretion, may dismiss the employee with pay in lieu of notice as an alternative to dismissal with notice.
Alternatives to dismissal available to the manager hearing the case include a Final Warning and:
 Demotion and/or reduction in rate of pay and/or
 Transfer to another department.
In some circumstances, being charged, investigated or prosecuted for an alleged criminal act may result in a situation where continued employment with the Company would not be practicable, due to the impact on the Company’s reputation,
or difficulties with carrying out the employee’s duties, or working with other employees. There may also be situations where a major customer refuses to deal with an employee, rendering future employment difficult. In such circumstances, even if the employee is not actually at fault, the continued employment relationship may not be viable and dismissal with notice may have to be considered on account of a substantial reason arising from that situation.
In disciplinary interviews where dismissal is a possible outcome, a representative from the senior management will ordinarily be present.
4.3 Duration of Warnings
Ordinarily formal warnings will remain valid on an individual’s disciplinary record for the following periods:
First Formal Warning 6 months
Second Formal Warning 9 months
Final Formal Warning 12 months
At the end of the period the warning will be disregarded for disciplinary purposes, but a copy will be kept on file unless a further warning has been given within the duration set out above, in which case the warning may be escalated. The Company may use expired warnings in assessing scoring in a redundancy selection exercise, if it forms part of the chosen criteria to be used.
4.4 Suspension with Pay
In circumstances where it is deemed by the Company that the investigation of a disciplinary issue might be hindered by the presence of an individual on site, or where there are risks to Company property or to the Company’s responsibilities to other parties, or in other circumstances where the investigating manager considers it appropriate, the individual may be suspended with pay until the formal disciplinary interview is convened.
4.5 Dismissal without Notice (Summary Dismissal)
Acts of gross misconduct undermine the relationship between employee and employer, and bring into question the continuation of the employment contract. Examples of acts of gross misconduct are set out in Section 4.10.
If it has been established that, after a full investigation, there has been an act of gross misconduct, or a serious breach of duty, or conduct, which brings the Company into disrepute, the individual will be summarily dismissed, without notice, by the employee’s immediate manager. Any mitigating circumstances will be considered prior to the dismissal.
In all disciplinary interviews where dismissal is a possible outcome, a representative from senior management will ordinarily be present.
Where a decision to dismiss without notice is made, the dismissal will apply as from the end of the relevant disciplinary interview.
4.6 Capability
Where an employee fails to meet the standards required to fulfil the requirements of their role due to a lack of capability, management will endeavour to help the individual to come up to standard, as appropriate. Such endeavours will include coaching, re-training and counselling in order to offer the individual help and support.
The individual will be advised of:
 The standards expected of them
 The improvements required
 The consequences of failing to improve
 The risk to their continued employment
 Any suitable alternative employment available.
If an employee fails to make the improvements required within the specified timescales, they may be subject to action and ultimately to dismissal.
If an employee loses a driving licence, e.g. due to “totting-up” of penalty points, and driving is an essential part of the job, the employee may be at risk of dismissal on capability grounds, subject to consideration of alternative ways of working or alternative work. The Company may consider a temporary demotion for the duration of a ban, together with a change in pay if the alternative job has a lower “going rate of pay”.
4.7 Disciplinary Action Against an Employee Representative.
Where there is a recognised Trade Union for a particular group of employees, the union representatives are subject to the same standards of conduct as other employees. However, no disciplinary action will be taken against an employee representative until the Full Time Officer of the union has been informed.
4.8 Appeal Procedure
An employee has the right to appeal against formal disciplinary action to the relevant manager at the next level in the Company above the manager who heard the first stage of discipline.
An employee receiving formal disciplinary action will be advised of their right to appeal at the time of receiving the formal warning or decision to dismiss.
Wherever possible, the manager hearing the appeal will not have been involved in the previous stage of disciplinary action.
The individual making the appeal has the right to be accompanied at the appeal hearing.
If an individual wishes to appeal against the formal warning or a decision to dismiss they should do so in writing within 5 working days of the issuing of the warning or decision. The individual should state clearly their grounds for appeal.
An appeal will ordinarily be held within 5 working days of receiving the appeal letter.
The decision of the appeal interview is final and not subject to further appeal.
4.9 General Offences
The following list of offences is intended to be neither comprehensive nor complete. It is intended solely to give examples of the more common offences. A general offence that is flagrantly committed can be regarded as a serious offence.
1. Failure to carry out reasonable instructions in a proper manner.
2. Poor timekeeping or attendance.
3. Failure to produce work of an acceptable standard.
4. Failure to conform to safety regulations.
5. Unauthorised absence from work.
6. Disruption of the work of others.
7. Poor performance standards.
4.10 Gross Misconduct
Acts of gross misconduct undermine the relationship between employee and employer and bring into question the continuation of the employment contract. Any act that entitles a Company to terminate the contract without notice is gross misconduct. Examples of gross misconduct are detailed below:
 Disorderly or indecent conduct, harassment, fighting, physical violence, offensive or threatening behaviour.
 Damaging Company property, equipment, products or materials.
 Consumption or unauthorised possession of alcohol or drugs on Company premises or in Company time.
 Being under the influence of alcohol or drugs on Company premises or in Company time.
 Unauthorised use or possession of Company property or the property of other employees.
 Falsification of records.
 Making false claims for payment or other benefits.
 Hiding, concealing or misappropriating Company property or the property of other employees.
 Serious breaches of Company regulations or procedures, including hygiene and health & safety regulations.
 Endangering the safety of people, plant or equipment.
 Refusing to wear personal protective equipment when required to do so.
 Deliberate contamination of materials, product or process.
 Failure to or refusal to carry out a lawful and reasonable instruction.
 Acts of harassment, or discrimination, particularly on the grounds of sex, race, religion, disability, colour, ethnic origin, sexual orientation or age.
 Misuse of the Company’s name, equipment, facilities or property.
 Inappropriate use of e-mail or internet systems.
 Negligence, recklessness or serious error, which causes unacceptable loss, damage, disruption or injury.
 Unauthorised use or serious disclosure of confidential Company information.
 Carrying an offensive weapon.
 Bringing the Company into disrepute.
The list above is not exhaustive. Acts or breaches of duty or other substantial reasons comparable to any of the above may constitute gross misconduct.
4.11 Grievance Procedure
The Company recognises that it is in the interests of all parties that individual and group issues should be dealt with effectively and speedily in an atmosphere of mutual trust and confidence. It is intended that most issues be resolved informally between employees and their immediate manager. This procedure does not form part of employees’ terms and conditions of employment and may be subject to change at the discretion of management.
Any employee has the right to raise a grievance with management concerning their working conditions and employment arrangements, to seek redress and to be treated in a fair and effective manner. Where a grievance relates to an individual's immediate manager, the complaint should be taken up with that manager's immediate manager at Stage 1.
An employee has the right to be accompanied at any formal stage of the grievance procedure, where a decision may be taken or varied.
Grievances arising from the following should be addressed in that relevant policy procedure and not through the grievance procedure:
 Disciplinary matters
 Equal opportunity and harassment policy
Whilst a grievance may be progressed through an agreed procedure, continuity of personnel will be maintained wherever practicable.
Where an individual issue cannot be resolved informally, if an individual wishes to raise a grievance formally they should use the following procedure:
Step 1- Statement of Grievance
The employee must set out the grievance in writing to clarify the basis of the grievance and send the statement or a copy of it to the employer.
Step 2 - Meeting
The manager will respond to the grievance within 28 working days of the matter being submitted to him in writing.
The manager must invite the employee to attend a meeting to discuss the grievance.
The meeting must not take place unless:
 The employee has informed the employer what the basis for the grievance was when they made the statement under step 1: and
 The employer has had a reasonable opportunity to consider their response to that information:
The individual will be advised of their right to be accompanied.
The employee must take all reasonable steps to attend the meeting.
A short written record of any meetings will be taken and management will advise the individual of the decision in writing.
The manager will advise the individual who initially raised the grievance of the decision in writing within 5 working days of the meeting, wherever practicable.
Step 3 - Appeal
If the decision at Step 2 does not resolve the grievance, the individual may ask for the matter to be referred to Step 3 - Appeal. The individual must register this wish to refer the matter to Appeal along with the reasons for such a referral, in writing, within 5 working days of receiving the written decision from the manager at Step 2.
Where reasonably practicable, the grievance appeal will then be heard by a relevant manager not involved at Step 2. A meeting will be arranged with the individual, another member of management may attend.
The employee must take all reasonable steps to attend the meeting.
The meeting should ordinarily be held within 5 working days of the appeal being raised, in writing, wherever reasonably practicable.
Employees have the right to be accompanied at the appeal meeting.
A short written record of the meeting will be taken.
The relevant manager will advise the individual who initially raised the grievance of the decision, in writing, within 5 working days of the meeting, wherever reasonably practicable.
The decision of this meeting will be final and not subject to appeal through any other procedure.
4.12 Right To Be Accompanied
As noted above in 4.1, an employee has a right to make a reasonable request to be accompanied to a disciplinary interview or to a meeting convened to resolve an individual grievance by a companion who may be a fellow employee or worker from the same establishment, or an accredited trade union representative.
An employee who is to attend a formal disciplinary interview or formal grievance meeting will be advised of this right prior to any formal disciplinary interview or formal grievance meeting taking place.
Where an employee wishes to be so accompanied, they must make a reasonable request to the Company, naming the person who they wish to act as companion.
The person so named has the right to refuse to accompany the employee.
A fellow employee, or a trade union representative who acts, as a companion will be entitled to reasonable paid time off to fulfill their responsibilities.
The companion has the right to address the disciplinary hearing or grievance meeting but not to answer questions on behalf of the employee.
Where a reasonable request has been made for a chosen companion who cannot attend on the date proposed, the employee may offer an alternative time and date so long as this is a reasonable time and within five working days of the day initially proposed by the Company.
The attendance in, participation in, or acting as companion in any such interview or meeting, does not in itself, constitute recognition of a trade union for other purposes.

Expert:  Ben Jones replied 1 year ago.
You are in a relatively strong position due to her length of service. If she has been continuously employed at her place of work for less than 2 years then her employment rights will be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that you can dismiss her for more or less any reason, and without following a fair procedure, as long as your decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.). Saying that if she has a specific contractually binding disciplinary procedure you would be expected to follow that. If no such procedure exists you can dismiss without holding a meeting or proving what she did was wrong. Also regardless of what procedure is in place you do not have to allow her to be accompanied at the meeting as she can't challenge that without the 2 yard service.
If you want to remove her the easy way then that would involve you just giving her the notice she is entitled to under contract. You do not have to give her any reasons for the dismissal or follow a procedure. Just pay her the notice and any holidays due and terminate her employment. I know that if she was being dismissed for gross misconduct she would not be due any notice pay but you would have to give her an opportunity to defend her actions and whilst she cannot challenge a dismissal she can still try and challenge its severity and whether it is gross misconduct or just misconduct. So if you want to end this the easy way just state that you are simply giving her notice of termination for no specific reason and that you are not required to go through a formal disciplinary procedure. She cannot challenge the dismissal as she does not have the required service to do so.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.

Thank you Ben. I do understand what you are saying but I am really unhappy at paying her the very high salary she was on for a month plus the week during which I was 'investigating' a very openly admitted case of misconduct gross or otherwise.

Thank you for pointing out the easy option as I wasnt aware of this and this is valuable information for me.

However please can you perhaps advise on how I can word an adjourment letter to her for this evening to send by email and text so that I can hand this over to my HR advisors tomorrow. It will save me around £3000 by getting shot of her asap and not going through the months salary especially when I am trying to limit the damage already caused by her stirring up the rest of my staff.

Thank you


Expert:  Ben Jones replied 1 year ago.
You can state something along these lines:
Dear X
The nature of tomorrow's meeting was intended as a disciplinary hearing for you to face the allegations of gross misconduct as previously outlined. However if you have not received the relevant evidence I propose to postpone the hearing for a few days until X to give to the opportunity to consider it and prepare a defence, if relevant.
Therefore please treat this as formal notice that the meeting scheduled for tomorrow, 13 July 2015, is postponed, with the new date to be communicated separately.
Yours sincerely
In the meantime you can provide her with the evidence you have and the policy and when you send these to her advise her of the new disciplinary hearing date.
Ben Jones, UK Lawyer
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