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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49785
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am appealing a dismismal on grounds of gross misconduct.

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i am appealing a dismismal on grounds of gross misconduct. question is can employer use a previous offence that as been served and spent in regards ***** ***** current outcome for similar offence

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Please can you first tell me how long you have worked there? Please also provide details of the offence and how long ago it occurred? Thank you

Customer: replied 1 year ago.
over 6 years . offence was having a mobile phone in restricted area deemed dangerous as chemical company. i didnt know i had it in pocket .i wasnt using it at anytime and it was on silent when took out pocket i checked it to turn off when boss saw it and reported it. i thought it was a pocket calculator

OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. 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 question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. When an employer is considering a person’s disciplinary record they can only take into account ‘live’ warnings, so offences which have resulted n a warning, the duration of which has not yet expired. What could also happen is that the latest offence is by itself considered serious enough to amount to gross misconduct regardless of what had happened in the past. So if the employer had used the past offence, the warning of which had expired, to make the current incident serious enough to dismiss, they should not be doing so. However, if the latest offence amounted to gross misconduct even if previous offences had not been considered, then a dismissal could potentially be fair. If you are unsuccessful with the appeal you may therefore consider taking this to the employment tribunal for an unfair dismissal claim.

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Thank you. If this results in a dismissal then you can go to make an unfair dismissal claim within 3 months of the date of dismissal. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.