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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50184
Experience:  Qualified Solicitor
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Ben. I need some advice. I have received a letter meeting He

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Hi Ben.
I need some advice.
I have received a letter for a meeting for Disciplinary Hearing for last Wednesday.
The allegations brought against me are the following:
1 Used brute force to open a resident legs and such action amounts to physical abuse
2 Failed to follow moving and re positioning guidelines witch constitutes a failure to follow health and safety rules.
3. Falsifying food and fluid charts an 1:1 records.
They consider that this allegations are potential act of misconduct and the outcome of the disciplinary hearing may result in dismissal without notice or pay in lieu of notice.
All this accusations are based on the following:
Investigation report.
Minutes from meetings with 3 witnesses that brought this allegations.
Copy of observation chart
The notice I have received was on the 17th of February. Since then they have suspended me waiting for Hearing letter.
When I received this letter a week ago I have sent my resignation. I found it hard to cope
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have you worked there for and what specific queries do you have about this?
Customer: replied 2 years ago.
I have worked there for 6 years as senior carer.
I need to know if I should attend the hearing, and If it will benefit if I can get witness statements from other colleagues that will prove that all this time working there I was following the correct procedures.
What other arguments or what else can I bring at the hearing that will improve my case. I am just worried that they will make an referral to DBS after they have concluded the investigation.
Whilst you have resigned you would be expected to serve your notice period and assuming that overlaps the disciplinary fate you would be expected to attend the hearing. Whilst you cannot be forced to attend, they could make a decision in your absence which may be worse than if you had attended. You should try and get whatever evidence is available to try and help you, so if you can get witnesses to back up that you have followed procedures that may help, but if it does not cover the alleged incident then it may not necessarily be that useful. Just because you follow procedures normally does not automatically mean you followed them on that day too. I cannot tell you what argumenta you can bring to prove your case. This is not a legal issue really, it is an actual one and something I cannot help with very much without knowing what is available out there and what you know about the situation. Your duty is to try and dispute the allegations and you must do so by using any available evidence or stating why you did what you did and try to justify it. There is no set answer or defence you can give, it all depends on the circumstances and you need to answer the allegations directly. This is your basic legal position. I have more detailed advice for you in terms of the law on misconduct dismissals and what is expected of the employer to show it was done fairly, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones and other Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks for your answer. This investigation have taken more then a month. I suppose to be paid a week ago but after I query them what happened with my salary they did not answer. After a week I have received their letter informing me that I need to attend a disciplinary hearing.They did said in this letter that if found guilty they will not pay me since the first notice. Is this right?
No that is not right, you need to be paid until your employment is officially terminated, so even if you did not attend the initial hearing, if they did not dismiss you at the time you would continue to be employed by them and can expect to be paid until such a time when our employment officially terminates. As to the procedure required, 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. 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.
Customer: replied 2 years ago.
When attending the dismissal hearing can I dismiss the investigation on the grounds that they have not followed the procedures by not paying me all this time.
Can I also dismiss the witness testimony on the reason that they have done this allegations as a revenge since I am complain about them in the past? One of the witnesses has previously being reported by me and now is turning the favor... the other one was not happy with my decision at work.
It is unlikely you can dismiss the whole investigation by arguing they have not paid you - this is a separate issue resolved by paying you what you are due. You can raise the points about the witness evidence to challenge its validity but the employer will decide whether to allow it through or not