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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61821
Experience:  Qualified Solicitor
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Ellen, London, UK, It is employment related, No thanks

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Hi Ellen,
JA: Where is this? It matters because laws vary by location.
Customer: London, UK
JA: What steps have been taken so far?
Customer: It is employment related
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No thanks

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

What is your employment related question?

Customer: replied 12 days ago.
Thanks Ben. I was fired from job today and I feel it is unlawful

Why were you fired and how long had you worked there for? Please provide some more information

Customer: replied 12 days ago.
Hi Ben,
I was fired this morning due to "Continued lateness, poor standard of work, using social media platforms for personnel use during work hours." (This is quoted from one of the 2 owners of my company.

I have not received any evidence, formal warnings or reasons why. I work for a recruitment agency and I am one of the highest billers within the company.

I wanted to see what we can do about this? I have been told i am on a 1 month gardening leave and I will be paid my basic salary only.

Thanks

So what have they based this on? Also, how long have you worked there for?

Customer: replied 12 days ago.
I have worked there since September 2017. As mentioned this has been based on "Continued lateness, poor standard of work, using social media platforms for personnel use during work hours."

This came about because I called up this morning saying I was going to be in 1 hour late as I didn't feel too well, and I was going to be in no more than 1 hour later. I was then told to leave it and take the day off unpaid, which I did not want or need to do by one of the directors of my company.

The owner of the company then called me up to say "he is letting me go because I was going to be an hour late this morning, and that he had also gone onto my computer and checked my emails and linkedin messages and read that I was looking for other jobs.

I received this letter as well with no proof as to why I have been terminated. (I have attached it).

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. If an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them the employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

 

According to the Employment Rights Act 1996 there are five separate reasons that an employer could rely on to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and that the outcome was one that a reasonable employer would have come to in the circumstances.

 

In your case they are relying on misconduct. Alleged misconduct is a common reason for dismissing 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 dismissal on grounds of misconduct was fair, the law requires that the employer:

{C}· Conducts a reasonable investigation

{C}· Follows a fair disciplinary procedure

{C}· Has genuine belief the employee was guilty; and

{C}· Shows that dismissal was a decision that a reasonable employer would have taken in the circumstances

 

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. Dismissal can 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 dismissal was an outcome, which 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 termination has already taken place, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the appeal fails, 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?

Ben Jones and 2 other Law Specialists are ready to help you
Customer: replied 11 days ago.
Hi Ben,
Thats perfect, thank you so much
Where would you suggest I go from here?

Assuming you will want to claim, before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

 

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

 

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

 

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300 123 1100.

 

If the conciliation process was not successful and you then wanted to make a formal claim in tribunal, you can do so here:

 

https://www.employmenttribunals.service.gov.uk/apply

 

 

Customer: replied 11 days ago.
That is fantastic Ben, thank you very much.

All the best