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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50206
Experience:  Qualified Solicitor
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This is an employment question. Last week my husband, who

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This is an employment question. Last week my husband, who is a bus driver broke down on his bus and he phoned the depot desk and told them what was happening and where he was. Then as he always does he switched his phone off. Its his own phone and he doesn't have it for work. He only has it in case I need to contact him and he doesn't have it switched on when he's driving so calls can't go through to him

Anyway today he was called in for a disciplinary hearing because he had switched it off and it is going to a formal hearing when they tell him what they are going to do about it.
In my opinion they have no right to do anything. Firstly there is nothing in his contact stating he has to use his own hone for work. If they want him to have a phone then they should provide one Secondly they didn't have his phone number and had rung me to ask them for it and I told them that he didn't have it switched on when he was working and he was annoyed because I was left worrying as I have two incurable illnesses and thirdly drivers have had less after being caught on the phone while driving.

This is now causing both of us a great deal of stress. Does he have any rights in this case?

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has he worked there for? Please note I am in tribunal today so may not be able to respond until later in the day. Thanks
Customer: 46 years Ben. He is officially retired, but chooses to still work
Ben Jones :

Many thanks for your patience. I fully agree that this appears to be an unfair and petty reason to be taking formal disciplinary action over. If he is not provided with a work phone, has no formal requirement to carry one with him or to be fully contactable at specific times, then disciplining him over switching his personal phone off, especially when he was not specifically asked to keep it on, would be quite unreasonable.


The issue is that there is nothing stopping the employer from taking disciplinary action – the law does not operate in a way that it would allow your husband to prevent the disciplinary action from proceeding. Rather, it works in a restitutional manner, meaning that it is there once the wrong has occurred and would allow him to seek redress over what has happened.


As far as the employment law part of this situation is concerned, if the employer was looking at the most serious outcome, which would be dismissal, they would need to show that there was a very serious breach by him, something that amounts to gross misconduct and that it was reasonable to dismiss. I am quite positive that this incident is not a gross misconduct issue and to dismiss someone with 46, presumably clean years of service would be considered quite unreasonable.


Therefore, if it ends up that way he may certainly consider appealing with the employer before taking this up as an unfair dismissal claim in the employment tribunal. But all of that is if this ends up in dismissal and we are still some way of that, if at all.


For the time being it is about maintaining his innocence, defending any formal allegations raise against him, appealing any formal decision taken and then considering his options depending on the outcome of the disciplinary.


Hope this clarifies your position?

Customer: Thank you Ben, that helps a lot
Ben Jones :

You are welcome, all the best

Customer: Ben it won't let me rate you as excellent. It keeps telling me that you haven't finished answerinf
Ben Jones :

Sorry it's a bug, we can process it manually later. Many thanks

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