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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 66754
Experience:  Qualified Solicitor
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Sorry to disturb you - I am currently employed having worked

Customer Question

Hi sorry to disturb you - I am currently employed having worked for employer 28 years. In 2017 I was successful in applying for an advance of salary for deposit and rent purposes. Again applying for just rent element for the advance of salary in 2018. It is a deposit scheme run by employer but I sought advice prior to applications. I do have emails between myself/manager/he indicating rent purposes. To this end I am being accused of gross misconduct along the lines of fraud.
JA: Have you discussed the accusation with a manager or HR? Or with a lawyer?
Customer: I have been through an internal governance procedure which ultimately has found me guilty despite evidence I have produced and monies paid back both years monthly direct from salary. My new management structure cannot get involved and my old manager I'm not allowed to approach. I have his written responses and they along lines of 'i remember something but not quite sure, has no emails now as deleted emails surrounding me as no longer my immediate manager. This element irrelevant as I have said emails.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Full time but term time. PCS but they won't help so approaching yourselves for input/advice. I am due to receive a letter asking me additional questions then Decision Maker has 10 days to decide outcome.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Management came out to see me last Tuesday, as I am off work with extreme depression and anxiety. This procedure has taken it's toll - I have had an awful private life and work was my only safely blanket. The thought that work could think of me like this has really hurt and I tried to commit suicide 2/9/2019. I am working with crisis team and due to be allocated a CPN shortly to help me with this process and then deal with other issues.
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

Customer: replied 7 months ago.
I'm logged in ready - thank you Mr Jones
Expert:  Ben Jones replied 7 months ago.

What is your employer basing the gross misconduct on?

Customer: replied 7 months ago.
That I've applied for a year's rent 'knowing' it was for deposit scheme only. They seem to have disregarded my evidence of 'rental' advance.
Customer: replied 7 months ago.
I can talk to you on the phone but I do get distressed over this - if you able to bear with me - shouldn't be too much of a problem.
Expert:  Ben Jones replied 7 months ago.

Thank you. 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.

Expert:  Ben Jones replied 7 months ago.

Many thanks for your patience. I can only discuss the legal position, in a sense of what is expected of the employer in the circumstances to ensure that this is done properly and a fair process is followed. That is what they would e judged on in the event they ended up taking a decision to dismiss and you challenged them.

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.

The important part is that 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.

All you can do is put forward your side of the story and provide whatever evidence you have to back up your version. However, 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 answer your query?

Customer: replied 7 months ago.
Thank you for getting back to me.The gross misconduct procedure commenced back in May 2019, aside from a chest infection whereby I was off ill or on term time, I had continued to be at work throughout the process. ACAS mentioned employee to be suspended pending a gross misconduct investigation, which I am not. Quite the opposite work seemed to be really anxious in getting me back to work. To add to this point my employer came out to see me to discuss other niggling issues in an attempt to put my mind at ease and to further assist my return to work, leaving me with my work's laptop - hence giving me assurance I am still of a trustworthy disposition - well that is my thoughts.I am due an occupational health interview over the telephone on 14/11, crisis team in the final throws of getting me a CPN to help me through this process and items of other personal issues I have.Once the above 2 aspects finalised, work rather than have me attend a hearing to discuss final points they are raising, are now prepared to put questions in writing so that I can also respond in writing.Are you able to offer guidance in this regard, would you look at evidence I have to help me answer their questions when received? Aside from emails I also have private text messages between myself/manager and his manager of the time in question.
Customer: replied 7 months ago.
Apologies the further points I am asking is for attention of Mr Ben Jones.
Expert:  Ben Jones replied 7 months ago.

Hi there, it is certainly not a legal requirement for someone to be suspended because they are facing gross misconduct – it is an option, but not a requirement.

In terms of further help, you have to be conscious that we are just a basic Q&A service, so going through evidence will not be included in our chat service. I can offer basic support and guidance, as above, mainly in terms of your general legal position and options but more detailed assistance will likely be outside of our remit. Hope this clarifies?

Expert:  Ben Jones replied 6 months ago.

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Expert:  Ben Jones replied 6 months ago.

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you