Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Hi there. What was your reason for the additional 2 days off?
OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.
Many thanks for your patience. As you have more than 2 years service you will be protected against unfair dismissal. This means that your employer must follow a fair procedure and also show there was a fair reason for dismissal.
Allegations of intentionally not coming into work are classified as unauthorised absence which are a misconduct issue. 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.
This is your basic legal position. I have more detailed advice for you in terms of the rights you have to challenge this should it end up in 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Hi I am afraid I will not be able to provide such detailed advice on here – we are just a Q&A site, if you need specific case advice and how to prepare a defence then you will need to engage a solicitor in person.
As mentioned, I can provide more details in the event this results in dismissal. If there are any doubts or evidence that the earlier mentioned 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.
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:
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.
If they really wanted to they can dismiss you with zero evidence - there is nothing stoppingthem from dismissing you at any point, it just means that te dismissal itself may not necessarily be fair in which case it can be challenged further.
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