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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am facing disciplinary proceedings from my employer

Customer Question

Hi,
I am facing disciplinary proceedings from my employer who is trying to dismiss me without a notice period. The emails and threats are becoming increasingly nasty and there seems to be no recourse but to go through their process and be ultimately dismissed or resign and take up a case for unfair/ constructive dismissal. They have vastly superior resources to draw upon than have i. It seems unfair that I can't be heard and am bullied by a more powerful entity without the means to raise a defence. Do I have any options? I have tried acas, who can do nothing until I've been dismissed, and do not have any union affiliation.
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 you worked there for?
Customer: replied 1 year ago.
Hello Ben,
I have worked there for 20 years this coming October
Customer: replied 1 year ago.
Hi Ben,
Are you still there? I did not initially realise that I had paid for the service, hence my delayed response.
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I was offline by the time you had replied. Why are you unable to raise a defence? Also what are the allegations against you?
Customer: replied 1 year ago.
Good morning Ben, I don't know the reason why this action has been taken at this time, it is our busiest time of year. I was originally accused of my performance not being up to the standards expected. Due to my not accepting a compromise agreement put forward by my employers yesterday they have accused mre of various misdemeanours which has culminated in my being suspended whilst an investigation is carried out into allegations of rudeness to other members of staff, a matter treated as gross misconduct by the company. My defense is that the workload is excessive and has been for years and the company have done nothing to alleviate the situation. A year ago I was given a £2,000 bonus and 8 months ago they took on a Finance Director (under dubious circumstances) who they fired two months later and promoted me into his position, with a salary invrease and the promise of an additional member of staff. The additional member of staff never materialised hence the workload situation did not improve and I find myself six months later facing dismissal.Sorry, a lot to digest.
Customer: replied 1 year ago.
We were taken over in Feb 2012, since which time I have lost my FD and a further ledger clerk whilst the number of companies in the group has risen from one to six. I inherited two members of staff in companies the group acquired but suffered the enforced redundancy of a long-serving ledger clerk who was replaced by a temp, who has since been replaced by a further two temps and I have had to replace my payroll clerk three times. The point being I have not had a settled team for the best part of the last year.
Customer: replied 1 year ago.
I have been placed under increasing pressure over the last two years, have taken very little of my holiday entitlement (I have 24 days accrued to be taken before tomorrow or I lose them, I have just been informed, whereas in previous years I have been allowed to carry them forward). The company have not taken any steps to alleviate the obvious stress I have been suffering over the last two years.
Expert:  Ben Jones replied 1 year ago.
It does look like the employer is intent on dismissing you whatever the circumstances. They have tried to get you out through a settlement agreement, which you rejected, so they are now trying to go down the disciplinary route for something which may not be enough to dismiss anyway. Being rude to others could in some circumstances be misconduct, up to gross misconduct, but it is not as simple as that. The employer must consider the circumstances, in which the behaviour occurred, if there were other mitigating reasons, also take into account our length of service and your disciplinary record. In your case, with 20 years behind you and a clean record, it really must be something very offensive, rude or derogatory that you said to even contemplate dismissal. Really this should be dealt with via a warning first and only continued issues should be dealt with dismissal. The issue is that the employer can do whatever they want at this stage and even dismiss you when it is blatantly clear that it is unfair and without good reason. Your protection really only kicks in once your employment has terminated. Whilst employed by them your options only extend as far as defending a disciplinary, being accompanied at it by a colleague or trade union rep and appealing the disciplinary decision. You also have the right to raise a formal grievance if needed. But you cannot legally challenge them at this stage, out a hold on the process or force them to act in a fairer manner. This is your basic legal position. I have more detailed advice for you in terms of what the law expects of an employer to ensure a disciplinary procedure is fair, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46794
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.
Thank you. Misconduct, such as the allegation here, 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. If there are any doubts about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 1 year ago.
Thank you Ben,
It would seem that there is nothing I can do until I am summoned to hear the findings of the investigation?
If I am dismissed for gross misconduct am i limited to ultimately taking them to a tribunal based on the findings? As you can appreciate this entire process has been very stressful and, as you stated earlier, they are looking for a way to get me out. Can I ask the tribunal to consider their, what I cfeel to be, poor behaviour throughout this sorry episode?
Expert:  Ben Jones replied 1 year ago.
Until dismissed you can only deal with this internally, so if you want any impartial third party involvement you do have to wait until your employment is terminated and pursue the ACAS/tribunal route . A tribunal will mainly look at the legalities of the dismissal, whether there was a fair reason and a fair procedure - you can of course highlight the way you were treated but that in itself would not decide the outcome, although it can paint a picture of bullying or victimisation for not accepting the earlier settlement proposal
Customer: replied 1 year ago.
Thanks. I have been placed on suspension pending the investigation (in which I have no confidence or expectation of fairness and fully expect to be found guilty) but have also been signed off sick for work-related stress by my doctor. Should I send the sick note to my employer? They, of course, will refuse to pay sick pay as it is paid at the discretion of the manager, in my case, the person who is conducting the disciplinary process and probably the investigation.
Expert:  Ben Jones replied 1 year ago.
During suspension you would receive full pay, if you are off sick you will only get the sick pay entitlement so if you ant to continue being paid you can remain on suspension rather than going off sick.
Customer: replied 1 year ago.
will this have any comeback at all? Am I under any obligation to inform them?
Customer: replied 1 year ago.
two years ago my holiday entitlement had built up to around 20 days and my employer decided to "buy" these days from me. Instead of putting the payment through PAYE, at the CEO's suggestion, I was paid in the form of a "loan" which was then written off in the accounts at year end. No loan documents were drawn up or signed and the matter forgotten about when written off at year end. The CEO is now persuing me for repayment of that "loan". What would you advise?
Expert:  Ben Jones replied 1 year ago.
No, it is up to you if you get signed off sick from work or remain on suspension. If you have other questions not related to the disciplinary and dismissal issue please post as a new separate query, man thanks
Customer: replied 1 year ago.
Thank you, ***** ***** related as I think they are trying to establish that this amount is due so that it can bet netted off against any final settlement.
Expert:  Ben Jones replied 1 year ago.
This payment is not a loan it is your legal entitlement to holiday pay
Customer: replied 1 year ago.
Thank you for continuing. Is that regardless of how they paid it? They basically avoided paying tax and NI by not putting it through PAYE.
Expert:  Ben Jones replied 1 year ago.
That would not matter but it does mean you did not pay tax when you should have but then again neither did they so both technicality in the wrong
Customer: replied 1 year ago.
Thank you....so i can just ignore his demands?
Expert:  Ben Jones replied 1 year ago.
Yes correct
Customer: replied 1 year ago.
Thank you ever so much for all your help. I have already given you a five star review.
Have a good day and thank you again.
Expert:  Ben Jones replied 1 year ago.
You are most welcome all the best

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