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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 57230
Experience:  Qualified Employment Solicitor
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I believe my company are trying to dismiss me starting with

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I believe my company are trying to dismiss me starting with an investigation of my hours worked. New co owners are trying to buy the company I believe they want me out. It’s made it really difficult for me to go in
Assistant: Have you discussed the termination with a manager or HR? Or with a lawyer?
Customer: I did the hr unofficially the manager is one of the people looking to buy another person out so don’t believe he will help
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: No to union I am the practice manager for 6 years I paid everyone and was never asked to show my hours to anyone before. The owner gave me his bank details and asked me just to pay everyone. It’s never been a problem till now
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: I just know they are trying to push me out as they believe they can pay someone else less

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

What exactly are you alleged to have done wrong?

Customer: replied 5 months ago.
They believe I have not worked the hours I said I did. We do t have an in house accountant so my boss gave me all his bank details and I pay everyone after I check all the other employees. He has never asked me to state what hours I’ve done and why as I take calls and do banking from home. We have no login systems just we have a clinic schedule but I’ve done than this for more over a year. I destroyed my diary last week as it was a new year neither them nor I can prove what hours I’ve done. I don’t believe the new owners want me there and are looking for me to just leave
Customer: replied 5 months ago.
Sorry to upset to talk on phone
Customer: replied 5 months ago.
Feel like I just should quit but my husband said it’s not fair after 7 years working for company just to get pushed out
Customer: replied 5 months ago.
They also promised me a £5000 retainer for last year but told me he can’t afford to pay me.

Thank you. I will explain what the law expects an employer to do if they were to try and argue that they had done things fairly.

Alleged misconduct is a common reason for taking disciplinary action against an employee. It could be either due to a single serious act of misconduct or a series of less serious acts over a period of time.

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.

If there is evidence that the employer has not followed a fair procedure as outlined above, a grievance can be submitted to the employer to formally complain about these issues. If a decision has already been taken an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of termination. So you may not want to quit but see where the employer takes this and if they potentially unfairly dismiss you then you can consider challenging them through the unfair dismissal process. It is free and it is for the employer to prove they had not dismissed you unfairly.

It is worth mentioning that there is a possible alternative solution, where the employer is approached on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under such an agreement, the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. It just means that these discussions cannot be brought up in any subsequent tribunal claim and prejudice either party. So there is nothing to lose by raising this possibility with the employer as the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Does this answer your query?

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