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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50165
Experience:  Qualified Solicitor
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I am currently under investigation of Gross Misconduct at work,

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I am currently under investigation of Gross Misconduct at work, and facing a hearing on Tuesday. I am a lab. chemist and had written a document for melting out and batching up a chem in an oven. The chemical was found to be very viscous and tarry so I had to make modifications to the original procedure to get the job done... increasing the oven temperature, batching out inside the oven etc. The procedure I then used was working outside of the original guidelines. Even though I managed to finish the job safely and was wearing full PPE throughout, the fact that I was working outside of an SOP is deemed a "Serious breach of company rules with health and safety implications" and a Gross Misconduct issue. I understand that I have broken the rules and modified the original instructions without managerial approval and have been trying to explain to my employer the reasons behind my actions. Can I argue that this was just a case of Misconduct (rather than Gross Misconduct), a "one-off" that will never happen again? What is my best option? My hearing is on Tuesday.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

I have been with my company since September 2011, so almost 4 years.

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query. Misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time. In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:· 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. 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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. So the key here is whether your actions amount to gross misconduct or not. There is no list of what gross misconduct is and it would depend on the individual circumstances. Sometimes the employer may have a disciplinary policy which provides examples of gross misconduct and that would be the first point of reference. If not, then it would depend on how serious your actions are viewed in the context of your job. Just because it was a one off incident does not mean it cannot be deemed gross misconduct, and it would depend on what rules you broke, how serious these actions were and the potential repercussions. It is really for the employer top decide that and perhaps base it on past examples but you may still raise what you said as a defence. The issue is there is no guarantee they would treat it as less serious and the main problem here would be how strict the SOPs were and how clear was it that you should always follow them. 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 about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two 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 date of dismissal. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Thanks for getting back to me.

The investigation "1." has been carried out, and it is now progressing to stage "2." (the disciplinary hearing). Gross misconduct is being mentioned as my employer are mentioning that this is a "serious breach of company rules with a health and safety implication". I am trying to gather all the information on what I did to demonstrate that, although I did not follow a formalised SOP, I did complete the task assigned. I had mentally risk assessed the procedure and the course of action I followed was, in my opinion, the best course of action. I am trying to argue that it was just a "breach of company regulations, with no health and safety implications". Several witnesses have stated that they smelled lactide (one of the components of what I was working with), but I could argue that this would have been the case just on opening the oven door. I now have to convince my employer that what I did was not a health and safety risk. I am just trying to gather all the information to demonstrate this. It does, however, look like the odds are stacked against me.

Don't assume the worst yet, it still depends on the disciplinary and you can also appeal the outcome. Whilst you can mention these mitigating factors it would depend on the evidence. But you cannot guarantee the outcome which is the issue, the employer could still proceed with a dismissal if they believed that based on the evidence this was a serious misconduct matter so all you can do is provide as much evidence to show that the health issues were not serious and that your actions had taken these factors into consideration
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