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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 75097
Experience:  Qualified Employment Solicitor
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I av been unfairly dismissed on people statements when I was

Customer Question

hi I av been unfairly dismissed on people statements when I was the one that got hurt
JA: Was the termination discussed with a manager or HR? Or with a lawyer?
Customer: hr when I had photo of where I got hit and keeps his job
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee av to appeal I av no one backing me even manager told lies in statements
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I Need help got 5 days to appeal
Submitted: 15 days ago.
Category: Employment Law
Expert:  Ben Jones replied 15 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 15 days ago.

How long have you 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 as soon as I can. Thanks

Expert:  Ben Jones replied 14 days ago.

Hello, I was wondering if you have had a chance to consider my query above please? I will need your response before I provide an accurate answer to your situation. Thank you and I look forward to hearing from you.

Expert:  Ben Jones replied 14 days ago.

Without the requested information, I can only provide you with general information, which hopefully will still be useful to you. First of all, I am sorry to hear about the issues you have experienced in your situation.

Your rights will depend on how long you have worked there for.

Less than 2 years

The main issue in the circumstances is the fact that you have only been continuously employed at you place of work for less than 2 years. That means that your employment rights will, unfortunately, be somewhat limited. Most importantly, you will not have legal protection against unfair dismissal. This basically means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. They can proceed with a dismissal even if you had done nothing wrong and also without following any specific fair procedure or proving that any of the allegations are true.

As mentioned, there are some exceptions to this, in which case the 2-year rule does not apply. These include situations where the dismissal was wholly, or partly, due to:

- Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

- Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it due to not meeting the minimum service criteria for claiming in the Employment Tribunal. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you, unless you were dismissed for gross misconduct. That is where you were guilty of something very serious which justifies immediate dismissal, without any notice pay.

In any other circumstances, you would be due a minimum notice period, as per your contract and associated pay. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they can decide to pay you in lieu of notice. That is when you are paid for the equivalent of the notice period but your employment is terminated immediately and you are not expected to work through your notice period.

More than 2 years

Alleged misconduct is a common reason for dismissing an employee and it is also one of the potentially fair reasons for dismissal under the Employment Rights Act 1996. 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:

- Conducts a reasonable investigation

- Follows a fair disciplinary procedure

- Has genuine belief the employee was guilty; and

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

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 a 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, the outcome can be formally appealed with the employer. After that, 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 13 days ago.

Hello, following my main response above, I just wanted to check that everything was clear. If you have any further queries about this issue, you can reply to me at any time on this portal and I will be happy to help. Thank you.

Expert:  Ben Jones replied 13 days ago.

Hello, I trust that everything has now been resolved to your satisfaction and your original question has been dealt with. If you have any further queries about it, please do not hesitate to get back to me on here. In the meantime, I wish you all the best.