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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 77845
Experience:  Qualified Employment Solicitor
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I was dismissed from employment after 14 years because a

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I was dismissed from employment after 14 years because a client provided video stills of a person shaped shadow (could not see who it was) potentially smoking (just 2 light spots on image) to my employer. The so called evidence was from a camera on a workspace that the individuals concerned had not been advised was there. On appeal my company has admitted that the evidence was illgally obtained but said to take that up with the provider as they are the controller but they still believe that they can use this illegally obtained footage. they have told me to go back to work for 2 training days and have another meeting, obviously to sack me using this illegally obtained evidence. I believe that they are simply trying to distance themselves of the legality of what they think they see and then sack me again. Can I go to court for constructive unfair dismissal? I already have a certificate from ACAS
JA: Have you discussed the termination with a manager or HR? Or with a lawyer?
Customer: ACAS have
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee no union
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Yes I was off sick when they dismissed me and provided me with an SSP1 and I have made a claim for ESA. They are saying that I could not use the SSP1 as they are overturning part of the dismissal
Hello, I’m Ben, an employment solicitor, and it’s my pleasure to assist you. I may ask for some information first to determine the legal position.

I am sorry to learn your employment was terminated. Please provide some more details of where the camera was situated exactly and who it belongs to.

Customer: replied 16 days ago.
The camera was in a transport yard belonging to the haulage firm, I worked for the security firm employed in a gatehouse owned by the haulage firm to record comings and goings of the vehicles.

OK thank you for clarifying this. How long have you worked for this employer please?

I also want to make you aware that this is not always an instant service, due to various legal engagements I could have and I may not be able to reply immediately. However, rest assured that I will be dealing with your query and will get back to you as soon as I can. Thanks.

Customer: replied 16 days ago.
14 years

OK I understand and thank you for providing this information. Please do not worry and leave it with me for now. I will get back to you with my full reply on here; usually the same day. The system will notify you when this happens. Many thanks.

Many thanks for your patience, it is appreciated. I am now pleased to be able to provide further assistance with your query. First of all, I am sorry to hear about the issues brought up by this. It must be a frustrating situation to be going through.

The fact that the footage may have been unlawfully obtained, as there were no signs to advise subjects that monitoring was taking place, does not prevent the employer from using it. It was not the employer who illegally took the footage and it was simply provided by them by a third party. Once in their possession, they can use as necessary to conduct an investigation and take further action as appropriate. You will have separate rights against the data controller who took the footage but these would be under data protection laws, rather than anything to so under employment law and in relation to the dismissal.

When it comes to the dismissal itself, you have to check wether a fair procedure was followed before you consider on whether to claim.

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.

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.

I trust that everything has now been dealt with to your satisfaction and your original question has been resolved. 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.

Ben Jones and other Employment Law Specialists are ready to help you