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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49850
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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my mother has just been dismissed from he position as superviseor

Customer Question

my mother has just been dismissed from he position as superviseor for a cleaning company due to health and Safety neglegence on not showing members of her teams the correct procedures, she has no offical health and safety status and the company has confirmed it has been shown on employees files that it has not been carried out in the last two years, I am trying to find out can I get copy of her case notes to put forward to a solicitor and do you think we have a case for unfair dismissal based on her not being a health and safety officer and with no other previous warnings or being made aware of this in the past?.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones : Hello, my name is Ben and it is my pleasure to assist you with your question today. How long did she work there for?
Ben Jones : i am in tribunal this afternoon so there may be a delay in responding, thanks for your patience
JACUSTOMER-pjpwfqoy- :

Hi Ben, she has been there about 12 years however has had her contract moved to different companies over that time, as this has been a cleaning contract other companies have come in and bid and suceeded but she has continued to work at the same place on the same wage etc.

JACUSTOMER-pjpwfqoy- :

She has been given 7 days to appeal, the basis for her dismissal was putting people at risk with her neglegence, there seems to be no health and safety office on site, allegations of not being trained properly and not showing them the assessment cards on site. All the new starters are trained by my mother and both have signed new starter forms when she completes training, as far as my mother is aware she has not missed anything.

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier. It appears that she has been dismissed for reasons relating to misconduct, which 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:

  • Carries out a reasonable investigation;
  • Follows a fair disciplinary procedure;
  • Has reasonable grounds for believing the employee was guilty; and
  • Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.

2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.

3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.

4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. A dismissal can be fair if the employer can meet the above requirements.

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.

I must say that if she has not been provided with the appropriate training and they have dismissed her for failures which have resulted from this lack of training, then the dismissal is quite likely to be unfair. Of course there is no guarantee that a tribunal will find that but the least she can do is appeal and after that a potential claim for unfair dismissal can be made. It could actually prompt the employer to consider settling this instead of defending the claim all the way.

Ben Jones :

I hope this has answered your query and would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you