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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49817
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was recently dismissed misconduct, some of the

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I was recently dismissed for Gross misconduct, some of the facts were in dispute and dismissal was not appropriate sanction according to published sanction guide lines, I therefore intended to appeal. I was told I could appeal as long as I did so within 5 working days. A copy of the Gross Misconduct and misconduct procedure also stated that I could appeal and an appeal would be held within 15 working days, where possible I would be given 5 days notice of the appeal and I had a right to be represented. I appealed and this was acknowledged, I head nothing for 3 weeks so e-mailed for an update and was told the case had been reviewed by a senior manager and my appeal had been dismissed. after complaining they have now offered to hold another appeal hearing. Due to the length of time I have now had to obtain alternative employment, so even if successful I would not be able to return. Do I have grounds for unfair dismissal, or do you have any other views or Advice, Thank you.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long did you work there for?
Customer: replied 2 years ago.
Forty years
When were you dismissed?
Customer: replied 2 years ago.
I was dismissed immediately at the conclusion of the hearing on 8th January 2016.
I worked for Surrey Police as an officer until 2007 and then as support staff.
The new employment you have obtained - does it pay similarly to the last job?
Customer: replied 2 years ago.
It is approximately the same hourly rate, but it is only 3 days a week, 22hrs as opposed to the 37 I was doing and it only for a nine month fixed contract.
Are you asking if you can claim unfair dismissal based on the issues surrounding the appeal?
Customer: replied 2 years ago.
Yes, and what happens if they allow my appeal and take me back, I will then need to resign, would that be constructive dismissal.
Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you
Thank you for your patience. When an employer conducts a disciplinary procedure they must follow the ACAS Code of Conduct and any internal policies they have in place. Procedural failures could make a dismissal unfair, although there are other considerations which may affect the success of such a claim, which I will discuss later. First of all, the ACAS Code says that an employee should be given the right to appeal, with any appeal being heard without unreasonable delay. There is no automatic right to have an appeal heating as long as the appeal is heard impartially by the employer. In this case you had an internal policy in place which stated that you should be given the right to attend an appeal hearing with specific timelines set for the procedure. The employer evidently failed to follow their own procedure so there is an argument that the dismissal was procedurally unfair. The issue is that if your appeal was unsuccessful the second time round and you proceeded to claim unfair dismissal, if the employer can show that even if the correct procedure had been followed the outcome would have been the same, the tribunal could reduce any potential compensation by up to 100%. So you could find yourself in a position where you are successful in an unfair dismissal claim but your compensation is reduced to zero just because the outcome would have been the same even if the correct procedure had been followed. The alternative is that you are successful on appeal and are reinstated automatically. You would then have to resign and claim constructive dismissal on the assumption you do not wish to return. You can then submit the claim at tribunal but the tables would have turned somewhat because that claim relies on you to prove that the employer had committed a serious enough breach to justify you leaving and claiming constructive dismissal. Such claims are not very easy as it is all down to you to prove. Also if you are successful the tribunal will take into account any income you have now so you will only be compensated for the difference in pay between old job and new job and for a limited period of time. This is your basic legal position. I have more detailed advice for you in terms of the best way to manage this and what option may be preferable, 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, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Employment Law Specialists are ready to help you
Many thanks. In the circumstances I think the best way to proceed would be as follows: {C}1. Appeal in any event{C}2. If appeal successful and you are reinstated, resign with immediate effect and state you have been constructively dismissed. You can then consider making such a claim which must be submitted within 3 months of resignation.{C}3. If appeal unsuccessful then consider an unfair dismissal claim, which must be made within 3 months of dismissal date.{C}4. Before you can make either claim you are required to contact ACAS and use their free conciliation service to try and negotiate a settlement with the employer. So you may end up being compensated without having to go to tribunal{C}5. If the conciliation is unsuccessful then you can consider making either claim but remember that you could either have your compensation reduced to zero or face a difficult constructive dismissal argument so think carefully. That is why it may be best to take it as far as conciliation as it is free but after that the risks really increase as you will have to pay claim and tribunal fees and could lose it all.