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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46208
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Its been 3 weeks since Ive been suspended from work for

Customer Question

Hi there
Its been 3 weeks since Ive been suspended from work for allegedly smoking illegal sustances. There was a company bbq on company grounds to which I was smoking a cigerette. However someone claimed that they smelt marijuana and claimed it was me. Today I had a investigation interview and was told that more than one person smelt drugs despite the fact that I have put forward atleast 10 witnesses. I am quite concerned that this is escalating and wanted some advice as to where I can go with this as I don't have a lot of confidence with the company. I have asked who made the allegation but was told the person wants to remain anonymous. I do not smoke drugs and I certainly was not smoking drugs at the time of the incident. Help!
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months 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 7 months ago.

Have you been suspended whilst the investigation is being carried out? Also, how long have you worked there?

Customer: replied 7 months ago.
Hi Ben
Yes I've been suspended with pay. I've been working for the company for 6 years. Approx 1 year with new owners
Customer: replied 7 months ago.
Hello??
Customer: replied 7 months ago.
Would it be easier to talk??
Expert:  Ben Jones replied 7 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 7 months ago.
OK thanks
Expert:  Ben Jones replied 7 months ago.

No problem at all

Expert:  Ben Jones replied 7 months ago.

Many thanks for your patience. Being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.

During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.

On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.

As far as the formal disciplinary process the employer has to follow a fair procedure. However, a decision can be made even if there is no hard evidence to prove the allegations, although the employer is still required to conduct a fair and proper investigation. I can discuss all the requirements if needed.

This is your basic legal position. I have more detailed advice for you in terms of the law on disciplinary proceedings and what is expected f the employer to show there was a fair procedure, 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

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46208
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 3 other Law Specialists are ready to help you
Expert:  Ben Jones replied 7 months 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.

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.

Customer: replied 7 months ago.
Hi thanks for your detailed advice on the matter. Just like to ask one more question.
With regards ***** ***** If a high majority of witness accounts back my claims, what's the chances of this escalating to disciplinary. Due to the fact that I wasn't doing what was alleged, escalating the case could only be based on eye witness accounts rather than factual. Right?
Expert:  Ben Jones replied 7 months ago.

If the employer still believes there is wrongdoing, they can still proceed to a disciplinary. But you can use these witnesses in the disciplinary to defend the allegations.

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