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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49816
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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An employee has been found to have committed an act of gross

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An employee has been found to have committed an act of gross misconduct, we need to dismiss this employee, an investigative meeting yesterday. At the employees request follow up disciplinary meeting was scheduled for this evening. At the last minute the employee sent an email refusing to attend stating she hadn't been informed of the reasons for the disciplinary. Which is false as she attended the first meeting and arranged with us, the follow up by telephone.
She included in her email a statement of giving us notice, is this not superseded by her current suspension and the ongoing investigation into gross misconduct?
Does the suspension/investigation period have to be for any particular period of time? And do we have to pay her for any or part of it?
Can we summarily dismiss her having proof of her guilt in the case of gross misconduct in the form of a written statement from a witness?

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

How long has she worked there?

Customer: replied 1 year ago.
Hello Ben, she has worked for for 2 and a half years

Hi there and 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. First of all the fact that someone is under an investigation or on suspension does not prevent them from handing in their notice. They continue being employed as normal during that period and as they are not under notice of termination by the employer themselves, they are free to resign at any time. Of course they must generally serve their notice period, so if in that time the employer wants to continue with the disciplinary they can do and they can even dismiss for gross misconduct before the end of their notice period. The reason for termination would then be the dismissal rather than the resignation.

However, a fair procedure must be followed. The requirements of a misconduct dismissal are contained in the ACAS Code of Conduct. In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:

· Conducts a reasonable investigation;

· Follows a fair disciplinary procedure;

· Has reasonable grounds for believing the employee was guilty; and

· Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.

It is possible that a dismissal can take place based on witness evidence from a single person but that would not remove the requirement for an overall fair procedure being followed. So a full disciplinary process must still be applied and followed properly to ensure that the dismissal is fair and that the employer has a reasonable defence in the event an unfair dismissal claim is made.

In terms of payment during the suspension and investigation, the employee is entitled to their full pay for that period, unless there is a very clear and specific clause in their contract stating that periods of suspension are unpaid.

This is your basic legal position. I have more detailed advice for you in terms of the procedure that must be followed to fairly dismiss, 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
Customer: replied 1 year ago.
Thank you Ben, we have recieved further email response from the employee -
Further to my email this afternoon confirming my resignation having seeking legal advise, I no longer need to attend any hearings or investigations. Please advise if you require me to work my three weeks notice as in my resignation letter sent today 16th August 2016, or please advise if you wish to terminate my contact with immediate effect following my resignation.Please advise when would be a suitable time to return keys and any other items belonging to the company, if you do not require me to work my 3 weeks noticeThis prevents us from following fair procedure, may we now dismiss her or are our hands tied to accept her resignation?

Thank you. It is nonsense that she does not need to attend any hearings or investigations because she has resigned. She is still an employee until her employment terminates and is bound as usual during her notice period. How you proceed is up to you – what you can do is let her resign and pay her the notice period she is due, then leave it at that. You can instead request that she works her notice period and in the meantime you proceed with the disciplinary matter and dismiss her. The issue with dismissing is that she can consider making an unfair dismissal claim if she thinks the dismissal was unfair or an unfair procedure was followed. It is then for you to prove that everything was done fairly and reasonably. Instead, if she resigns she can only make a constructive dismissal claim and in that case it is for her to prove that there were serious enough issues t justify her resigning and claiming – such claims are much more difficult to win by employees so in a way you just want to let her resign and not proceed with the disciplinary or dismissal because it will make things easier for you in the event she decides to take this further.