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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48206
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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On the 03 November whilst drilling a 4 inch hole in a wall

Customer Question

On the 03 November whilst drilling a 4 inch hole in a wall of a new built house I hit the metal lintel above a dorment electrical box cutting two wires within the cavity. The box had not yet been wired and although a live feed was there it came from below and was safe. My employer was on site acusing me of gross misconduct and asked me whether I would like to pay for the damage out of my wages or accept a written warning, I naturally said I would take a written warning but, stated that it was an accident and that I was only doing what was asked. The next morning on the 04 November at the company offices my employer asked me into his office where I was expecting a written warning, but To my surprise he said he had decided to let me go for gross misconduct and did I want to leave there and then. I asked if I could stay until tomorrow the 13 November to get a full pay period in and he agreed saying that a person with my experience and ability could do anything and wouldn't be out of work for long.for the five years I have been working for the company I have never received a verbal or written warning.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
Around five years
Customer: replied 1 year ago.
Do I have a case for unfair dismissal as I am unsure of what to expect and how to proceed
Expert:  Ben Jones replied 1 year ago.
So there was no investigation or disciplinary hearing held?
Customer: replied 1 year ago.
No noe what so ever he just said he couldn't believe I'd done it and I proceeded with the rest of my days work
Expert:  Ben Jones replied 1 year ago.
From hat you have said it does appear that the dismissal was most likely unfair. The employer has not followed a fair procedure, they have not done what is expected of an employer in the circumstances and procedurally there has been a complete lack of fairness. As you have more than 2 years’ service you will have protection against unfair dismissal and can challenge this if you wanted to. This is your basic legal position. I have more detailed advice for you in terms of a full explanation of what a fair procedure looks like, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and 2 other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thank you for the rating. So to discuss the procedure which should have been followed – to start with, misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
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.
Hope this helps.