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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 64746
Experience:  Qualified Employment Solicitor
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Can I be dismissed for gross misconduct based on speculation

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Can I be dismissed for gross misconduct based on speculation and no physical evidence?

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Customer: replied 7 days ago.
Hello

How long have you worked there for?

Customer: replied 7 days ago.
No I'm not sure I should spend £44 if I may lose my job soon.
Customer: replied 7 days ago.
I have worked there for 2 and half years. It will be 3 years in July.

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

I will explain how such procedures work and what the law expects. Alleged misconduct is a common reason for dismissing 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 dismissal on grounds of misconduct was fair, the law requires that the employer:

{C}· Conducts a reasonable investigation

{C}· Follows a fair disciplinary procedure

{C}· Has genuine belief the employee was guilty; and

{C}· Shows that dismissal was a decision that a reasonable employer would have taken in the circumstances

 

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. Dismissal can 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 dismissal was an outcome, which 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 termination has already taken place, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the appeal fails, 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.

 

Does this answer your query?

Customer: replied 7 days ago.
Are you able to advise on specifics if I give details about my case?

Only basic advice

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 7 days ago.
Ok thank you

All the best