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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49804
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Ben: Things have developed from my last question. We are now

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Ben Jones : Things have developed from my last question. We are now going through the Tribunal process. I have some questions to ask concerning the Lack of information given to Michael during the investigation and Disciplinary date invitation letter. He was never told that the Problem was considered Gross Misconduct. So was unable to make the choice to postpone the meeting until he could seek advice and be accompanied by a Union rep. He believed that he would be given a warning as it was a first offence in a unblemished 3 year employment. He acted in consideration of Health and Safety.

Hello again, what information was he actually given in advance f the meeting?

Customer: replied 1 year ago.
Hi Ben! He was given a letter with 2 days notice of the date of the meeting, It did not state the reason or the consequences of the charge. It did say in general terms that this could result in action up to and including dismissal. But as his previous 2 meetings were not disciplinary and he had not been told of the consequences he just thought he would be given a warning. They have concentrated on their Gross Misconduct rule of falling asleep at work. They are not interested in his reasons. The first he knew that it could result in Gross Misconduct was on Q11 of the disciplinary meeting. By which time it was too late to get any advice.
Customer: replied 1 year ago.
The letter of the outcome of the Disciplinary meeting and the notes were apparently lost in the post so Michael did not request them until April 11th. He asked for an appeal and was granted one. He did not have a colleague to accompany him(there was only one who was employed by the same agency) nor was able to have a Union rep as he had left the employment. He requested to take a note taker and was refused. He had informed them in his letter of reasons for an appeal that since his dismissal he was taking medication for depression and having counselling. They didn't care about that. When we arrived at the premises of the appointment we were met by the security officer who informed us that he had been instructed to make sure that no-one accompanied Michael into the building. Michael was in no fit state to speak for himself and was confused and agitated. He phoned me in a state and I told him to close the meeting and we would seek advice from ACAS. Their written notes of this meeting clearly show that Michael should have had support. To their mind though he refused to discuss the matter. He had written clearly his reasons which they were not interested in. They just kept putting the documents of his employment in front of him. Bullying tactics I think?? As far as they are concerned he fell asleep - finished. So why bother with the investigation as they were just not interested that he had been there for 3 years with no problems?

Hi there, the ACAS Code says that the letter inviting the employee to a disciplinary should set out sufficient information about the allegations and their possible consequences to enable the employee to prepare their case for the disciplinary hearing. Copies of any documents or evidence on which the employer intends to rely at the hearing should be provided.

There is no formal requirement for gross misconduct to be mentioned if it has been made clear that dismissal could be one of the outcomes. The employee needs to be informed of the potential consequences and if they have been told that dismissal is an option then that is sufficient – it already shows them the seriousness of the offence.

Now even with 3 years service and a clean record, it is possible to dismiss without any previous warnings if the misconduct is serious enough. Whether that is the case will depend on the particular circumstances but do not assume that no warnings means no dismissal is possible.

At this stage, now that the appeal has been completed and assuming it was rejected, his only option is the ACAS conciliation procedure which I presume you are already following…

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.
Oh ok. I thought we had a case but maybe not. I have paid the initial £250 and have a date for a Tribunal but I have to pay another £950 on the 19th September. They haven't taken into account that he pulled over to refresh himself and was acting as he thought in the best interests of Health and safety as he test drives 25 ton vehicles over rough terrain and large cliffs. After his break he was able to continue and finish his 12 hr shift. Seems unfair . If we pull out will I have to pay the other companies fees? Or if I continue to the end do I only lose the £1200 ive paid .... No more?

usually in tribunal claims each party pays their own fees so even if you pull out partway or you lose, the starting position is that you only pay your own fees. However, if you have been given an official costs warning by the other party or tribunal that you have a weak case and that by continuing you may potentially be liable for the other sides's costs and you unreasonable continue with the claim, they could make an application for costs against you. You would be given a warning though in advance and the chance not to continue.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

My full response should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to this? If your query has been answered 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. Thank you

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