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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50140
Experience:  Qualified Employment Solicitor
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I am due to attend a disciplinary hearing soon, but I have

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I am due to attend a disciplinary hearing soon, but I have grave concerns that I have been targeted, as I was asked if I discussed an issue with my manager in may 2014 re a case, I emailed that I had. however they did not ask my manager to confirm anything for 4 months, she then went on maternity leave, at which point they told me I will be disciplined for misconduct, !! she has now done a witness statement-19 months after the incident.. I feel I have been treated unfairly but have been told I cant put in a grievance about a disciplinary, what re-dresss do I have to bring this crucial point up? as I feel both of us should have been questioned, BEFORE disciplining me, what can I do
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today.can you tell the original date of the disciplinary issue and also how long you have been employed there please.
Customer: replied 2 years ago.
the disciplinary has been set for the 4th jan 2016, but I am too stressed to attend and have submitted a sick note till 22/2/2016, I am 55 years old and have worked for the local authority as a social worker for 27 years,
I really do not feel I will be able to return as my health is so bad, but I am fearful of a gross misconduct verdict and dismissal
Thank you for your response. I will review the relevant information and will get back to you as soon as possible.
Please do not respond to this message as it will just push your question to the back of the queue and you may experience delays.
Many thanks for your patience. What the union has advised you is not quite correct – a grievance can be submitted about any issue in the workplace, even if it relates to a disciplinary procedure. So for example, if there has been an unfair procedure being followed by the employer you could raise a grievance to complain about that. The employer should hopefully place the disciplinary on hold until they resolve the grievance. If the grievance is rejected or the employer refuses to deal with it, you can bring this point up at the actual disciplinary, should you decide to attend. If a decision is made against you then you may also appeal it formally. If you are considering not returning, then this could potentially amount to constructive dismissal, which occurs when the following two elements are present:· Serious breach of contract by the employer; and· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long. A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario). If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal. Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal. An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you. Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you very much, you have been so helpful, please can I phone you, and how much will it cost, I need clarification on a few things, many thanks
Hello, I am afraid I am not available for a call at present but can continue this on the separate thread you started, I will reply on there shortly
Customer: replied 2 years ago.
hello Ben, when you refer to "serious breach of contract by the employer" could an example of that be a flawed disciplinary process, by that I mean when the incident occurred in may 2014, I was questioned relentlessly by a senior manager - informally- ,july 2014, ( I have just found some emails), I insisted I spoke to my manager,he assured me things would be ok, so I thought that was the end of that and he would confer with my manager who would have confirmed I had liaised with her, but he made no effort to confirm what I had said with my manager. and when she went on maternity leave 3 months later, I was informed I would be disciplined, does this constitute a serious breach of contract ? she has now done a witness statement December 2015, ...
can you also clarify what "an acceptance of that breach" means, you also state the employee must ac t in response to the breach, and must not delay any action too long,
sorry for being so naïve, but I just need an example, kind regards
Hello again, yes it is possible that this could amount to a breach of contract and as mentioned a breach could also be a breach of the implied term of trust and confidence. Therefore, if the employer’s actions have breached such trust it could also qualify. An acceptance of the breach means that you do not try and challenge the employer over what has happened, you instead accept their breach and immediately resign as a result of it. My main concern here is whether you have left it too late to resign now – if all of this happened mainly in 2014 then you would have generally been expected to deal with it at the time, however if the process was not completed but it just continues now you could argue that you are reacting to the most recent developments and use them as a reason to leave.