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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50148
Experience:  Qualified Employment Solicitor
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Ben.I was just online the with you and seemed to have lost

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Hi Ben.I was just online the with you and seemed to have lost the connection.I was asking about my misconduct appeal and your advice
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. I cant seem to link this question to a previous one, could you please explain your situation in a bit more detail?
Customer: replied 2 years ago.

My employment was terminated on the 12/06/15 after 14 years service on the grounds of misconduct.I injured my knee at work whilst climbing down from the cab of the truck I was driving.I reported the incident to supervisor as per company policy and continued to work for the rest of the morning I went to my doctor who signed me off on the sick.My company has looked at cctv footage (jerky in most parts) and come to the conclusion that I had not injured my knee at work and was therefore lying about the injury.I had an mri scan of my knee and it was found to have a torn carteledge and bruised tendons and since then I have not been back to work.Two interviews have taken place about the incident and I have appealed against the decision to terminate my employment.The hearing is on Thursday and my objections have been sent to the company.Could I have a case for wrongful dismissal?Many thanks for your assistence

Hi, thanks for getting back to me. 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:{C}· Conducts a reasonable investigation;{C}· Follows a fair disciplinary procedure;{C}· Has reasonable grounds for believing the employee was guilty; and{C}· 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. Now in your case the employer is only relying on CCTV footage and whilst that can form part of their investigation, you also have medical records to prove that the injuries were not faked. Would the employer know more than medical specialists to be able to discount their evidence? Probably not, so this would be an important consideration. 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 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. You do have grounds to at least consider a challenge for unfair dismissal although only a tribunal can decide whether you will be successful or not. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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