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Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?
14 years , 25 years in total
Are there any policies in place that specifically prohibit what you did or make it a gross misconduct offence?
in the movement plan q7 statesmobile phones must never be used in the internal whouse or yard whilst the flt is in use , however it was outside and never enterd while i was on the phone
Did they investigate the allegations first to try and find evidence to see if you had breached these rules?
i am on cctv for about 3 sec going under the chain to a safe area , no fork lift in wh at the time
Have they actually mentioned that your decision not to work the requested hours is influencing their decision?
no they are saying it isnt
ok let me get my response ready please
will be away for 2 minutes
ok im back
Misconduct, such as the allegations here, is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious 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:
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. There were some specific policies in place prohibiting certain things, such as using the mobile phone in the warehouse, but there is no concrete evidence to show that you had done what you did and as such the employer needs to be careful. Nevertheless, they can go on what the investigation shows and what they reasonably believe happened.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.
hi so does this mean my employer can dissmiss me forthis
dismissal is always a possibility, nothing would ever stop the employer from dismissing you if they wanted to, it is what you can do if that happens and whether you an challenge it, which you can, but if the employer is intent on dismissal then that can't be avoided and your rights then shift on challenging the dismissal and seeking restitution
thanks for your help
you are most welcome, all the best