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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 70196
Experience:  Qualified Employment Solicitor
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Unfortunately I am unable to get a rep for my disciplinary

Customer Question

Unfortunately I am unable to get a rep for my disciplinary hearing next week. Therefore I have to choose I colleague that I would like to have present with me. I am slightly concerned that it seems to be that my employer has already made the decision that I have lost my job as she has removed me from our website, our work group chats and the rota, without telling me. I am concerned that my employer may give me the option that I either resign or that I get sacked, as she has done this to a previous employee.
Submitted: 6 days ago.
Category: Employment Law
Customer: replied 6 days ago.
I have recently been in touch with slater and Gordon. However they have said to hire a rep would be around £1000 + vat.. they also said that you don’t normally have a rep for hire for disciplinary hearings. Therefore my only other option is to have a colleague with me. Is there any advice or help that you could offer? Thanks
Customer: replied 6 days ago.
If my my employer does offer me the option of resignation or being sacked... what do you suggest I do? Do I appeal or take this to a tribunal? Which I have never had to do before.
Customer: replied 6 days ago.
Also is this classed as gross misconduct?
Expert:  Ben Jones replied 6 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 6 days ago.

Please remind me how long you have worked there for? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 6 days ago.
It was 3 years in June this year. Thank you!
Expert:  Ben Jones replied 6 days ago.

Many thanks for your patience. If your employer offers you the choice between resignation and being sacked, there is no definitive right answer I’m afraid and it really depends on the allegations, the evidence, the strengths of both of your cases and also how far you are willing to take it afterwards.

I would say that if you are going to challenge them either way, a dismissal will be better to pursue as the burden of proof is on the employer, whereas with a resignation it would be up to you to prove that you have a valid claim.

I would however highlight the employer’s actions to them which suggest a decision may have already been made. Whilst pending a disciplinary you may have your IT access removed or restricted, they should not take other actions which suggest a decision has already been made (e.g. removing you from team structure, team pages, or something else which looks like a more permanent change is upcoming).

If you are offered a choice of how you leave it may also be worth raising the option of a settlement agreement where you are paid off to leave voluntarily and that could be a good way to part ways with a payment, without having to then make na claim against them.

Does this answer your query?

Customer: replied 6 days ago.
thank you! Basically I work in a private run nursery, my partners nephew goes to the nursery and he had asked me how his nephew was getting on.. I said I had noticed that there was a couple of days where he didn’t come in but the days where he was in nursery, he had great days! Unfortunately this then got back to the child’s mother, who then complained to my employer and stated she was concerned that I was discussing her child outside of nursery. I have never done anything like this to break confidentiality however I only told my partner because it was about his nephew. I never had a negative or malicious intention. I have never been given any warnings, so I would think that I would be getting a warning for this rather than being sacked on the spot. However, my employer has done this to a previous employee, where they were given the option of resignation or getting sacked.Could you please further explain the dismissal and the settlement agreement please? Unfortunately I not very knowledgeable regarding all of this... thanks for your help!
Expert:  Ben Jones replied 6 days ago.

A settlement agreement 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 such an agreement. Under it, 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.

Customer: replied 6 days ago.
is a settlement agreement something that I could suggest in the disciplinary hearing? That sounds like something I’d much rather do.
Customer: replied 6 days ago.
Also is this classed as gross misconduct?
Expert:  Ben Jones replied 6 days ago.

yes you can suggest it at any time, and the hearing itself is as good time as any, although it should be separated from the main deliberations as it should be discussed off the record.

This can potentially be gross misconduct but there will be mitigating circumstances, such as the child was related to your partner so not like you were discussing a stranger's child with someone else

Customer: replied 6 days ago.
would I be better off suggesting the settlement agreement after the hearing? If it comes to that. Thank you so much for your help!
Expert:  Ben Jones replied 6 days ago.

Perhaps try it before because then the employer could decide whether to offer it and not proceed with the disciplinary, but even if rejected initially, you can bring it up at any time again

Customer: replied 6 days ago.
I’d be slightly worried about mentioning it beforehand because they haven’t actually told me what the outcome will be. I’d rather mention that if they were to give me the two options.
Expert:  Ben Jones replied 6 days ago.

that's absolutely fine, there is no right/wrong time to do it, as mentioned it can be brought up at any time

Customer: replied 5 days ago.
Thank you so much for your help!! Just one more question that I’ve just thought about... if I was to either get sacked, resign or have a settlement agreement, how would I got about unemployed benefits? As I’m concerned that there’s not many jobs going at the moment, due to covid.
Expert:  Ben Jones replied 5 days ago.

The riskiest one would be if you were to resign as then your benefited could be delayed by up to 26 weeks. Still, if you have reasonable grounds to justify why you resigned, such as being pushed into it by the employer, or leaving due to a breach of contract on their part, the delay won't be as long but there is still likely to be a delay until they establish the facts.

Customer: replied 4 days ago.
Thank you for your help!! I have since received an email from my place of work stating that if my explanation is unsatisfactory then I will be dismissed... I need to know how I can defend myself, I suffer from severe anxiety therefore I need to have everything I need to say written down.What do you suggest I say in my defence? Thank you
Expert:  Ben Jones replied 4 days ago.

Hi, unfortunately advising you on how to build a defence will not be something I can realistically do on here as we are just a basic chat service and mainly here to discuss your rights and options, rather than how to build a case or defence, I am sorry

Customer: replied 3 days ago.
Okay thank you for your help! One last question, if they decide to dismiss me tomorrow which it’s looking highly likely.... am I entitled to ask for the holiday pay that I’m entitled to? I have a holiday already booked for November and Christmas holidays. Thanks
Expert:  Ben Jones replied 3 days ago.

Hi there, you would be entitled to get paid for all accrued holidays up to the date your employment terminates.