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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 72659
Experience:  Qualified Employment Solicitor
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I face a disciplinary hearing after gross misconduct

Customer Question

I face a disciplinary hearing after gross misconduct accusation from employer. I want to challenge after hearing as I feel there are some very grey areas in the findings and may have a case. This is linked to a revision of contract salary and redundancy payment which employer does not agree with - or want to pay.
JA: Have you discussed the accusation with a manager or HR? Or with a lawyer?
Customer: I had a discussion with HR and senior manager, who produced the report/findings , received at 11pm last night
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: investigation meeting held last week
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Employee of UK company, working in Africa on a 2 yr contract - so I also have a local contract
Submitted: 18 days ago.
Category: Employment Law
Expert:  Ben Jones replied 18 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 18 days ago.

What do you specifically want to know about this, please?

Customer: replied 18 days ago.
I feel that the company is trying to make a case for Gross Misconduct for dissmissal so as to avoid payment of correct severance package and is accusing me of a conflit of interest with regards ***** ***** of local contract value which was incorrectly reported to local ministry.
Following an internal review I am now facing a formal disciplinary proceedure.
I can forward the review findings and reports.
I am also being accused of having made the change knowing that I would be made redundant and therfore would benefit from the correct payout
Changes were made under a Power of Attorney granted to me to administer the local branch office and no internal procedures state this could not be done having followed the same process every 2 years since 2014
Expert:  Ben Jones replied 18 days ago.

Ok but we are just a basic chat service, primarily to simply explain your rights and options – I won’t be able to review the case or build a defence for you, for example

Customer: replied 18 days ago.
what are my options andr ights at the disciplinary heaing?
Customer: replied 18 days ago.
what % of employment tribunal cases are successful for the employee?
Expert:  Ben Jones replied 18 days ago.

Asking what percentage of claimants are successful is pointless to be honest because that is not what determines you prospects of success. Previous cases, which have no relation to your own circumstances are irrelevant in determining how your case will go. You need to concentrate on your own case, your own facts and your own circumstances, rather than look at what percentage of past claims, completely unrelated to yours, have done.

As far as the disciplinary process itself is concerned, alleged misconduct is a common reason for taking disciplinary action against an employee. It could be either due to a single serious act, or a series of less serious acts over a period of time.

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

- 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. It sets out various steps along the process which the employer has to follow to ensure the process is fair.

The main requirements for a fair disciplinary procedure can be summarised 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. Conversely, simple matters will only require a simple investigation which can be completed in a day. The employer is not legally required to provide full details of the allegations prior to an investigatory meeting taking place.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing to answer these allegations. They must be given reasonable notice of the hearing, together with 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 workplace 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 penalise them.

4. Penalty – this has to be a decision, 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, any mitigating factors and the employee's length of service and disciplinary record. Other aspects, like expressing remorse and apologising and there being evidence the issues were innocent or unintentional should also help to a degree. 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. A decision on the balance of probabilities will be sufficient and 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, the outcome can be formally appealed with the employer. If the disciplinary results in dismissal then a claim for unfair dismissal can potentially be made in the Employment Tribunal. There are two main 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 official date of termination.

Expert:  Ben Jones replied 18 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.