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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61264
Experience:  Qualified Solicitor
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I have been accused of gross misconduct for using my company

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I have been accused of gross misconduct for using my company card for personal reasons. The card was used by an individual fraudulently but it would seem that the company has taken the view that the transactions are of a personal nature. I am due to goto the hearing this week but wondered where I would stand in this. The credit card company have refunded the transactions out of good will as they said they would have rejection from Mastercard. It would seem that the Card company has not done a full investigation into the transactions and now I am facing the question that I was behind the transactions. They say if the accusations are found to be true then I will face summary dismissal. I would like some guidance on this if possible.
JA: Where are you? It matters because laws vary by location.
Customer: I am based in Scotland and the employer is based in England.
JA: What steps have you taken so far?
Customer: So far I have been going through the evidence that was supplied in advance. I have also been trying to contact the companies where the transactions have occurred as well to find out if accounts have been created in my name. I have also reviewed all the policies around the company card and have found that I have done exactly what they say I should do in this instance.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Not at this time. I can provide further information as required.

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.

How long have you worked there for? Please note I am mobile at present so may not be able to reply immediately, thanks

Ben Jones and 5 other Law Specialists are ready to help you
Customer: replied 10 days ago.
I have worked there for 4 years

Many thanks for your patience. 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.

 

Customer: replied 10 days ago.
Thanks for your reply. I see that the procedure is being followed in this case but I was wondering if I have to prove the fact that the transactions were fraudulent and that I never made them. I wondered if you have any advice on this point. I also noticed that on the credit card policy that I signed and present in the evidence pack that there was no mention of disciplinary procedures for any misuse only the card will be cancelled and any remaining payments made. This is where I seem to be a bit confused.

You do not HAVE to prove that but obviously it would help your case if you could. Also the disciplinary does not have to specifically mention this as a reason to take things further – it is a bit of common sense really and a policy cannot always include all specific instances when disciplinary action may be taken – the list is not exhaustive

 

Customer: replied 10 days ago.
Ok thanks. I will continue to look through the evidence that was supplied. I hope I can get the information needed before Thursday to help my case.

Very much hope so too, best of luck with it