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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have recently been dismissed on grounds of mis conduct off

Resolved Question:

I have recently been dismissed on grounds of mis conduct for signing off my own time sheets with the wrong times. One instance was 3 hours and the other was 3hours 27 mins. I was asked not to sign my time sheets but if I do not as there is never a manager around I would not get paid. I told the people at my hearing that I had made a mistake and I would never and have never committed any act of theft or fraud. I have been employed by Asda for 7 years with an exemplary record and feel I have been extremely unfairly dismissed. I know I did wrong in signing the sheets as I was told not to but it was either signing them or not get paid!
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.

Expert:  Ben Jones replied 1 year ago.

How long did you work there for?

Customer: replied 1 year ago.
7 years
Expert:  Ben Jones replied 1 year ago.

OK, thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Expert:  Ben Jones replied 1 year ago.

Hi there, in the circumstances it would appear that your employer is potentially acting in breach of contract which could give rise to a constructive dismissal claim.

This occurs when the following two elements are present:
• Serious breach of contract by the employer; and
• An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.

A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).

So If they are pushing you out of your job with no reasonable explanation and it appears to be done unfairly, the option of constructive dismissal is there for you if needed.

This is your basic legal position. I have more detailed advice for you in terms of how to use the constructive dismissal route, 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

Expert:  Ben Jones replied 1 year ago.

My apologies i appear to have posted the wrong response here,please see below for your answer

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. You were clearly put into a difficult position because you were told not to do this but at the same time risked not getting paid as a result. Still, if you were specifically instructed not to sign your own time sheets you should not have done so, even if it meant not getting paid. If you did not get paid what you were due them that would have given you your own rights against the employer as it could have amounted to an unlawful deduction of wages (i.e. Where you were jot being paid what you were legally due). So you could have pursued this separately, without breaking any rules in the process.

Still, whether you could be dismissed does not just depend on whether you broke the rules. The employer will need to show that you had committed gross misconduct, because you are protected against unfair dismissal and that is what they could have dismissed you for. They need to take into account the offence you were allegedly guilty of, its seriousness, your length of service, your disciplinary record and whether it was reasonable to dismiss in the circumstances.

If you had just signed off the time sheets with the correct times then that should have only resulted in a warning. If however you had signed them off with the incorrect times, it makes things more serious. You may have done this in genuine error but the employer only has your word to back this up. Ao if they believe that this was not done by accident and you could not persuade them that this was the case, they could treat it as a more serious offence, such as dishonesty and dismissal is an option. They will have to show that they had followed a fair dismissal procedure and that there was a fair reason to be able to defend any unfair dismissal claim.

This is your basic legal position. I have more detailed advice for you in terms of the procedure they need to have followed by law and your options on challenging the dismissal, 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 and 4 other Law Specialists are ready to help you
Expert:  Ben Jones replied 1 year ago.

Thank you. 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.