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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49787
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben I have been suspended on Friday and had confirmed today

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Hi Ben
I have been suspended on Friday and had confirmed today it is a capability procedure that is being followed. I had felt I was being treated under a disciplinary procedure but stand corrected. My laptop was taken from me and in order to present my defence I need to access it. I am told I can have access for 2 hours at midday tomorrow and the hearing will go ahead on Friday. I am reminded the company will not be following alk it's procedures as I am under 2 years employment. I guess my 2 questions are firstly how does all thus sound to you? as I do not think this is reasonable or supportive as j have had next to no feedback on the many issues that are now presented as areas of concern. Secondly if I go sick tomorrow will the hearing have to be rescheduled or as I am under 2 years employ can it be rushed through and I be dismissed in my absence? Thank you feel like a noose is tightening round my neck with a review in march where my performance was outstanding!!!!

Hello how long exactly have you worked there for?

Customer: replied 1 year ago.
16 months

Thank you. If you have been continuously employed at your place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.).

So if the procedures that they should be following are just contained in policies that are not part of your contract, it would be up to the employer to decide whether to follow them or not and they can dismiss you for no apparent reason and without any fair procedure in place. However, if the procedures are part of your contract of employment they would be expected to follow them because if they do not they can be guilty of wrongful dismissal, which is a dismissal in breach of contract.

As to being signed off sick, it is possible for them to still go ahead with the hearing even if you are off sick. The failure to postpone the meeting would potentially make the dismissal unfair but as you are not protected against that they can go ahead and do it regardless.

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

Customer: replied 1 year ago.
BenPlease see the following extract below from company today. In addition they have reinstated the without prejudice offer of 3 months salary gross. My notice period is 3 months just so this is in context. How could I argue for more?
My contract does read to include the disciplinary / grievance policy. The company have come back and confirmed there is no capability procedure. Where does this leave me in light of below extract statement please?
I was off sick due to diabetes management issues and medication was changed. I was taken sick on 29th June returning on 11th July. I am type 2. Medication only prescribed since april 2015. I have suffered with menorrhagia since mid last year and previous management were awarea nd supportive. This new manager has been in place since March this year. He has made comments related to ' old' to me but no one else is present. He has also told me he considered sacking me for not getting on with Dave and has subsequently also made same comment to newly recruited manager who reports to me that he could sack me. I am really distressed please advise.EXTRACT FOLLOWS'With the issues that we will be discussing at the meeting on Friday and the fact that you have under two years’ service – the policies do not apply and are not relevant.
We are affording you the right to representation at a formal meeting where you will be given the opportunity to respond to the issues.
Unfortunately nobody is able to meet with you tomorrow and I do not accept that you are unable to make submissions without access to the laptop. Please provide your responses / submissions as far as you are able to by 5pm on Thursday 11th August 2016. Please submit these to myself via email.'

Hi, so is it a disciplinary procedure or a capability procedure they are following and what are the specific reasons for it?

Please leave your rating for the initial response so I can continue answering follow up questions, many thanks

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi. I have been told by company it is a capability procedure. On further request by me to company for copy of all procedures company has confirmed there is no capability procedure. They have also when questioned come back to say they will not be adhering to any procedure as I am under 2 years of service. They have reinstated without prejudice offer of 3 month salary which I have to accept by Thursday or on Friday they go ahead with hearing.Am I not entitled to 7 days to seek independent advise? I have asked if they intend to dismiss as the heavy handed approach would indicate this and not working to support me to access laptop to build my defence because this HR manager is on leave fir hext 2 days . HR advise that it will be Paul my manager who is chairing this whi will decide based on meeting. How can the person who is raising all issues be the chair / investigating officer as that is not fair or impartial. Your thoughts? How should I respond as I need to do whatever it is by Wednesday midday or I am running out of lifeline. Please advise at earliest. I will respond ASAP for sake of speed.

Thank you. If this is a capability issue and there is no capability procedure in place then dismissing you without following a fair procedure will not be a breach of contract because they are not breaching the contract in any way. Hey are therefore correct that with less than 2 years service and no contractual procedure on capability, they are not required to follow any specific procedure and can just go ahead and dismiss. You are not entitled to any time to seek advice unfortunately, if they wanted to they could dismiss on the spot and just pay you what you are due. Also the issues with who is chairing the meeting is all to do with the fairness of the procedure, which as mentioned you cannot challenge due to not having the 2 years, so they can have a completely biased procedure and decision, based on no evidence at all or even made up evidence – morally it will be incorrect but legally they can do it in the circumstances. So the offer they have made you, I presume will cover your notice period you are due anyway so it is not really an offer as such – they are just offering you what you are due. Whether you reject it or not, they should still pay you that, unless they have offered you 3 months pay ON TOP of your notice period, in which case I suggest you take it