Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Who do you wish to talk about this with?
please note I am travelling so may not be able to reply until later on today, thanks
Thanks for your patience. Initially you said that you are not allowed to talk to staff about this but then say you want to talk to a lawyer. I presume you meant a lawyer on this site, rather than a lawyer n person? If you wanted to talk to fellow staff about this then the employer can request that you keep the matter confidential and do not share anything about this issue with others in the company. You are not the subject of this and as such do not have rights to approach others when you have been explicitly told not to. Doing so could amount to misconduct and be a disciplinary offence. As your husband is the subject of this investigation, he would have the right to potentially talk to others, if he wanted to gather any evidence to support his case or to find witnesses. This may have to be done via the employer if that is what they have stipulated but he should not be unreasonably prevented from defending the allegations. So you can still help him by talking to him about this and discussing what he can do in the circumstances but I would advise that you do not directly approach others if you have been specifically requested not to do so.
This is your basic legal position. I have more detailed advice for you in terms of the rights your husband has when facing allegations of a disciplinary matter, 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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.
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.