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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47388
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My wife was threatened with instant dismissal as she was

Customer Question

My wife was threatened with instant dismissal as she was smoking outside but in a no smoking area. She knows she is at fault but has had no previous warning in regard to smoking or at any time during the period of employment. Can she be dismissed immediately for this
fringement or should she be given a written warning first? My wife works 3 days a week totalling 14 hours at a residential home
Submitted: 9 months ago.
Category: Law
Customer: replied 9 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer: replied 9 months ago.
Phone number is *****
Customer: replied 9 months ago.
Will you please send a copy of answers to my Gmail account? 2
Customer: replied 9 months ago.
Although I requested a phone call please don't. My wife doesn't know I have contacted you and is asking why I am still up.
Customer: replied 9 months ago.
Question sent 12.32 paid £56 for urgent response now 1.16 without answering
Expert:  Ben Jones replied 9 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 9 months ago.

How long has she worked there for?

Customer: replied 9 months ago.
4 years
Customer: replied 9 months ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Ben Jones replied 9 months ago.

To be able to dismiss her immediately the employer has to shoe that there was an offence amounting to gross misconduct. As she has more than 2 years’ service she is protected against unfair dismissal so the employer will have to hoe that there was a fair reason for dismissal and also that they had followed a fair procedure.

What makes smoking a gross misconduct offence will depend on various factors. For example, was there a clearly communicated policy which said that smoking is prohibited in no-smoking areas and that doing so would amount to gross misconduct? Would smoking where she did expose others to risk or affect the image of the company, such as if she is seen by service users, suppliers, clients, etc?

There has been case law which has ruled that smoking in non designated areas, even if it was a one off offence, can amount to a fair dismissal. You can read about this here:

http://www.frettens.co.uk/site/library/legalnews/Smoking_dismissal_was_fair

It does not automatically mean it can amount to dismissal but if there was a clear policy which said that breach of the smoking rules can amount to dismissal then it can happen.

This is your basic legal position. I have more detailed advice for you in terms of the options she has on taking he matter further if she is dismissed, 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

Expert:  Ben Jones replied 9 months ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 9 months ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.