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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61234
Experience:  Qualified Solicitor
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I need your advice for something related to my job. Nothing

This answer was rated:

Hi Pearl,
JA: Where is this? It matters because laws vary by location.
Customer: I need your advice for something related to my job.
JA: What steps have you taken so far?
Customer: Nothing yet. I am in London UK
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I can share the info with the lawyer

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 12 days ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call.
Customer: replied 12 days ago.
Let me know if you need more information, or send me the service offer(s) so we can proceed.

Please explain your situation in some detail

Customer: replied 12 days ago.
Hi Ben,

I have an employment issue. There is a dismissal case against me for gross misconduct. I am employed in the UK and I am field based sales person so I have the right to work from home.

I was traveling to Palma de Mallorca and my manager called me on Tuesday morning. I picked up the phone and he realised I was outside of the UK. I confirmed that I was abroad and therefore he immediately raised the issue with HR and he informed a few minutes ago that I have a hearing this Friday with him and the HR.

I have written evidence (emails etc.) of working from home even though I was abroad. I have also tried to contact him and our internal holiday-booking system but I couldn't have access. I have evidence of this communication.

I don't think that is a reason for gross misconduct and such a serious allegation and I would like to seek your professional advice.

Thank you,

Stelios

How long have you worked for this employer?

Customer: replied 12 days ago.
I also believe that this is a very sort notice and I feel that me rights of representation have been violated. They didn't make a suggestion to bring a representative with me at the time of the HR appointment nor to have any form of legal representation.

This is all based on oral telephone communications with me and my manager. No contact has been as yet with the HR.

Please provide the information I have requested

Customer: replied 12 days ago.
Since October 2018

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.

Many thanks for your patience. The main issue for you is that if you have been continuously employed at you place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

{C}· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

{C}· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

 

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you (unless you were dismissed for gross misconduct, where no notice would be due). If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they instead have to pay you in lieu of notice, where you are paid for the equivalent of the notice pay but your employment is terminated immediately.

 

So whilst you cannot challenge the dismissal itself, you can potentially try and argue that it is not gross misconduct and at least you should be entitled to your notice period.

 

In terms of rights of representation, you have the right to bring in a colleague or a trade union rep with you to a formal disciplinary hearing. All you have to do is ask, you do not have to expect the employer to suggest it to you fist. However, note that you cannot have legal representation as that is not an option under law.

 

Does this answer your query?

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

Customer: replied 12 days ago.
Hi Ben, you've answered most of it. I wanted to ask you something else too but then I have to pay £56 more.

Was it a separate query to the one above?

 

Customer: replied 12 days ago.
no it was the same query

You don’t have to pay extra for short follow up advice so go ahead

 

Customer: replied 12 days ago.
so I wanted to say that I want to use the following arguments tomorrow in my disciplinary hearing:
1. I was working (emails, quotes and contact with colleagues are a proof)
2. since you mentioned pregnancy I was thinking to mention that as well.

They are accusing me of travelling outside of the UK whilst having a UK based job without written authorization.

What do you think?

You can mention these, in terms of pregnancy only really mention it if it is actually relevant – don’t try and score a shot by saying it when it has nothing to do with the issues here.

 

As to the allegations, if there was nothing in your contract which said that you must seek authorisation before travelling and you can work remotely and it makes no difference where you are based whilst you do that, then it should not be seen as a serious issue. Does this clarify things a bit more for you?

 

Customer: replied 12 days ago.
I can always mention that I wasn't aware that working remotely from another country would be a problem and at the same time say that I wouldn't do that if it wasn't urgent as I really had to be there to support a family member.
Customer: replied 12 days ago.
I also went through the company book which they've attached in the relevant email and it's stated that have to give at least 2 working days notice and go through 3 steps of investigation before proceeding to a disciplinary hearing.

My manager called me on Wednesday at 4pm

I got the email from the HR on Wednesday around 7pm and

the hearing is scheduled for 11 am on Friday
Customer: replied 12 days ago.
is that possible ?

The failure to follow the procedure will not be that critical because that would only allow you to claim for unfair dismissal but you need 2 years service as mentioned so cannot be challenged

Customer: replied 12 days ago.
I understand.

So since you know all the details could you please advice me on what the best approach would be?

You have very limited rights I’m afraid so you are best advised to admit you may have done something wrong, but point to there being nothing that specific and the work not being adversely affected by it, apologise and say that now you know the rules properly you would not repeat such an error again

Customer: replied 12 days ago.
sounds good! thank you for that!
Customer: replied 12 days ago.
would it be smart to email this as a reply to the HR disciplinary hearing invitation and also repeat that tomorrow when I meet them in person
Customer: replied 12 days ago.
?

You can just say it in person tomorrow and follow up in writing if needed

Ben Jones and 3 other Law Specialists are ready to help you
Customer: replied 12 days ago.
that's what I will do! thanks again
Customer: replied 12 days ago.
if you are on LinkedIn feel free to add me

All the best and thanks

Customer: replied 5 days ago.
Hi there
Customer: replied 5 days ago.
I received the official response/letter from my HR and wanted to ask you a few more questions