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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61648
Experience:  Qualified Solicitor
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I have been suspended from work for gross misconduct, I

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Hi, I have been suspended from work for gross misconduct, I receive a letter on saturday inviting me to a disciplinary meeting, and enclosed with the letter were all the notes from other parties who were spoken to...should I have received these due to GDPR?
Assistant: Have you discussed the suspension with a manager or HR? Or with a lawyer?
Customer: The suspension meeting was held with my manager and an HR administrator
Assistant: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Permanent employee
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: I'm not part of a trade union No I don't think so

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

How long have you worked there for?

Customer: replied 5 months ago.
7 years
Customer: replied 5 months ago.
No thank you

Who are the other parties?

Customer: replied 5 months ago.
Colleagues within my team

And I presume this was all information they gained as part of the investigation?

Customer: replied 5 months ago.
we we were all spoken to separately

Ok this is not a breach as the employer has an obligation to provide you with any information and evidence that will be used against you at the disciplinary hearing. You have a right to receive that in advance of the hearing to allow you to prepare a defence. It is standard practice in internal disciplinary proceedings, required under the ACAS Code and as such it is not a breach of the GDPR.

Does this answer your query?

Customer: replied 5 months ago.
2 of us have been suspended
Customer: replied 5 months ago.
Ok thanks. Also, there is no evidence of the alleged incident, purely word of mouth
Customer: replied 5 months ago.
if my employer decides to terminate my employment, would I have a case for tribunal?

Well it depends on how the whole process was conducted.

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. 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.

Does this clarify things a bit more for you?

Customer: replied 5 months ago.
thank you for your help

All the best

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