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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46784
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We fitted some energy saving devices at work over each of the

Customer Question

We fitted some energy saving devices at work over each of the doors to minimise heat loss and expenditure, a memo went out to all employees that they must stay on to help the business reduce its costs. An employee decided to turn off the equipment over a door in his area and leave the door open, the internal heating was still on so cold air was coming in, would this account to gross misconduct, in our hand book it says it is
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have they worked there for and what exactly does the handbook say?
Customer: replied 1 year ago.
Hi Ben
5-6 years and the handbook - 1.4.1 Not to change any of the company’s property in any way, to switch off or remove any cost saving or safety devices or machinery without the consent of the managing director, doing so will result in disciplinary action up to and including gross misconduct.
Expert:  Ben Jones replied 1 year ago.
Is his disciplinary record clean? Was this a one off offence?
Customer: replied 1 year ago.
Yes a clean record
Expert:  Ben Jones replied 1 year ago.
As the person has more than 2 years’ service they will be protected against unfair dismissal. This means that you must follow a fair procedure and ensure that there was a fair reason for dismissal, otherwise it could be challenged. Your handbook does say that such actions could amount up to and including gross misconduct, but it is not an automatic gross misconduct offence. Whether it is that serious will depend on the individual circumstances. Was it just a one location he did this too? Did he do it deliberately, fully knowing he was breaching the memo and policy in place? In other words was it all malicious? These are all relevant factors you must consider. You should not go into the disciplinary with your mind set on this being gross misconduct, you must go in with an open mind and allow the employee to defend themselves before deciding on whether there is evidence to treat it as gross misconduct. In this case I would act on the side of caution and perhaps issue a formal warning, reminding him of the policy and asking that this is not done again. Only if it happens again after that should you consider dismissal for repeated offending. This is your basic legal position. I have more detailed advice for you in terms of the procedure you need to follow to ensure the disciplinary is treated as a fair one, 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, UK Lawyer
Category: Law
Satisfied Customers: 46784
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Ben
Expert:  Ben Jones replied 1 year ago.
Thank you. 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.

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