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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50178
Experience:  Qualified Employment Solicitor
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I need some advise on what to do - I know I will be shortly

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Good afternoon,
I need some advise on what to do - I know I will be shortly called for a disciplinary meeting for Gross Misconduct - I have been advised I don't have any recourse and if the company chose to dismiss me there is nothing I can do - should I resign prior to the meeting as I know having this on my record will make it difficult to find future employment?
The circumstances are as follows:
On the 2nd August there was an accident at work wherein my colleague who I work alongside with was injured. I was operating the hoist which caused his injury. I have worked for the company since February 2016 and my colleague has worked of the company nearly 10 years. I have not been given any formal training on the operation of the hoist nor have I received any Method Statements or RAMs prior to doing this specific job. I followed the lead of my colleague when doing this job as he said this was how he had been shown to do it previously.
I provide my witness statement in regards ***** ***** on the 3rd August. My line manager gave me 2 days compassionate leave and asked me to return to work on 8th August. I worked the morning alongside my line manager. After lunch on the 8th August my line then advised me that I was not supposed to be at work as I've been suspending pending investigation into the accident. Notice of this was given to me verbally and not formally in writing.
On 10th August, my colleague telephoned me as he had heard of my suspension. During his conversation with me he advised that a member of staff had been in contact with him and suggested to him to say that he was inspecting a different part of the machinery and not the part we were actually inspecting.
I then contacted my line manager on 11th August and asked for an update in respect of investigations and told him of my concerns where a member of staff was trying to influence the injured parties statement. My line manager said there were discrepancies in the witnesses which the company would like to discuss. He said he would call me back to advise when. My line manager telephoned me back on the 11th August and asked me to attend a meeting at 10.30am on 12th August to discuss the discrepancies.
This meeting was held with Maintenance Manager, my line manager and another member of management (his name is Karl). We discussed the discrepancies in the statement. I was then asked by Karl is I had received written notice of my suspension to which I replied I had not. Karl then said a letter would be sent to me. The meeting concluded at 11.30am.
On the 13th August, I received by post (signed for) a letter asking me to attend a disciplinary hearing for gross misconduct on the 19th August. I contacted the Maintenance Manager, who the letter came from which was p.p. on his behalf and advised that I had received the letter. The Maintenance Manager said that I should not have received this letter and that it had been sent out in error because the investigation into the accident had not yet been completed. The letter I should received was the one confirming my suspension. I also at this time advise my Maintenance Manager that I would be away on holiday 19th August, holiday which was booked prior to the accident.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

How long have you worked there?

Customer: replied 1 year ago.
Since February 2016

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. 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 what you have been advised is true I'm afraid – if they want to dismiss they can even if you have done absolutely nothing wrong or you have a defence for what happened.

If you wanted to resign then you would be expected to serve and work your notice period, otherwise you would be acting in breach of contract. However, in that time the employer could still proceed with the disciplinary and dismiss you. If you were to leave without giving the notice period required of you the employer can still mention in a reference that you left in breach of contract pending a disciplinary hearing. Whilst not as bad as a dismissal, employers can draw some inferences from this.

I would say in the circumstances it is best if you try to negotiate a mutually agreeable exit where they agree to let you go and drop the disciplinary against you. If they do not and you are either dismissed or have to leave, then your only rights will be in relation to the references you get from them and there are certain legal principles they have to adhere to and which you can potentially challenge if the contents are misleading.

This is your basic legal position. I have more detailed advice for you in terms of the references they provide about you, 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, there is no extra cost and 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

Thank you. Whilst there is no legal obligation on employers to provide a reference for past employees, if they choose to do so they will automatically owe them a duty to take reasonable care in its preparation. This requires the employer to be accurate in the contents of the reference and ensure it is based on facts, rather than just personal opinion.

Certain principles have been established through case law over the years and the main points can be summarised as follows:

1. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.

2. In the later case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference that refers to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place. This can be applied to other matters forming part of a reference, not just issues of misconduct.

So if it is obvious that incorrect facts have been relied on, the contents are false or misleading, there may be a potential case for negligence against the employer and this matter could be taken further by seeking compensation in the county court for any damages caused.