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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 58806
Experience:  Qualified Solicitor
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I am in a situation where my employeer is looking to

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I am in a situation where my employeer is looking to terminate my employment, i have been accused of giving company confidential information to a competitior
Assistant: Have you discussed the accusation with a manager or HR? Or with a lawyer?
Customer: The MD i asked me to leave site on friday afternoon, then requested me to attend a meeting tomorrow, there is no HR department
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am an employee and not of a union
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: the contract that is being used against me is from 2009 and as i am turning 70 in a few weeks time, there is a clause that states i would be asked in writting to confirm if i choose to stay on in employment with the company, i have not had nor written anything, will this nullify the contract?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

So do you deny this allegation and please could you clarify how long you have worked for this employer?

Customer: replied 6 months ago.
Hi Ben, im at the end of my tether
Customer: replied 6 months ago.
I do deny the allegation and approx. 15 years
Customer: replied 6 months ago.
I also have not been shown any of the evidence of the alleged actvitiy
Customer: replied 6 months ago.
Hello, Ben?
Customer: replied 6 months ago.
Another concern is that my contract was from 2009, I cannot remember signing it or receiving a copy of it, the signature on it is mine and the witness is the MD who is carrying out the disciplinary, there is also no route for appeal.

Thank you and apologies for the delay. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience. if the employer wanted to discipline you over these allegations, they are expected to follow a fair process.

Alleged misconduct is a common reason for taking disciplinary action against an employee. It could be either due 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:

{C}· Conducts a reasonable investigation

{C}· Follows a fair disciplinary procedure; and

{C}· 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. Altogether, it means that a fair disciplinary procedure should be conducted 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.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee can be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including 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 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 sanction them.

4. Penalty – this has to be a sanction, 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 and the employee's length of service and disciplinary record. 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. 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, a grievance can be submitted to the employer to formally complain about these issues. If a decision has already been taken an appeal can be submitted to the employer immediately after the disciplinary outcome. This is a legal right so the employer cannot prevent you from doing that. 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 termination.

Finally, the contract will unlikely be void because of the factors you mentioned. The employer n still use it against you if they can show that it is more likely than not that it was issued to you and thus you were aware of its terms.

Does this answer your query?

Customer: replied 6 months ago.
if I was to refute the contract indicating that I did not sign it, as the counter signature is that of the person carrying out the disciplinary, where would that leave me?

But your signature is on it?

Customer: replied 6 months ago.
a signature that maybe mine is on it however i have no recollection of signing it.
Customer: replied 6 months ago.
the date on it was written by the counter signatory

You can always refute signing it but the employer is not expected to provide 100% proof that you had signed it. In employment it is all on the balance of probabilities…if it was more likely than not that you were given the contract and had signed it, accepting it, then they can try and rely on that. In the end your employer can make the decision regardless of what you say, and you will have to challenge the outcome in tribunal if you disagree with it. Hope this clarifies?

Customer: replied 6 months ago.
Ok thank you Ben, you have been most informative

you are most welcome and best of luck with it

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