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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50487
Experience:  Qualified Employment Solicitor
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I am going to a work disciplinary hearing next week. I have

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I am going to a work disciplinary hearing next week.
I have been charged with three counts of gross misconduct but in all the statements the witnesses cant give a date or time just said it happened in may. and it took them to the end of august to raise the issue three months later.
the manager is out to get me this is not the first time he has done this to staff.
I have been of sick since august

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

What is your specific question in relation to this? Please can you also tell me how long you have worked for this employer for, all in all? Thank you

Customer: replied 4 months ago.
Can they discipline me without having specific date and time as I am not able to respond where I was on that day? None of the issues raised were addressed at the time when it happened. I've worked here 7 years

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and 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 respond 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. An employer is not legally expected to pinpoint the exact date and time an incident happened before they are able to discipline. This is not the same as criminal law where you need to be certain beyond reasonable doubt - in employment law the balance of probabilities is sufficient, hence why sometimes it is possible to discipline even if the exact details are missing.

Still, that does not mean they can just do it and they are still expected to follow a fair procedure.

In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:

· Conducts a reasonable investigation

· Follows a fair disciplinary procedure; and

· Shows they had reasonable grounds to believe the employee was guilty

In addition, the employer is expected to follow the ACAS Code of Practice on Disciplinary and Grievance procedures, which can be incorporated into their own disciplinary policy. Altogether, it means that a fair disciplinary procedure should be conducted as follows:

1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee can be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a colleague.

3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them.

4. Penalty – this has to be a sanction, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee is issued with a written warning for a first offence.

In summary, the requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that the penalty was one that a reasonable employer would have taken in the circumstances.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss your rights in the event you think a fair procedure was not followed or a reasonable decision was not reached. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a quick second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Hello, not sure if you are having trouble seeing my posts? Do you need any further assistance or are you happy with the response to your query? I look forward to hearing from you. Thanks

Ben Jones and other Employment Law Specialists are ready to help you

Thank you. If you decide to take this further you may only do so if your employment is terminated. Initially you can submit an internal appeal but if that is unsuccessful, you have 3 months in which to make a claim for unfair dismissal.

Before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300(###) ###-####