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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 61737
Experience:  Qualified Solicitor
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I have been accused of misconduct at work and would like to

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Hi, I have been accused of sexual misconduct at work and would like to find out how I can seek advice
JA: Have you discussed the accusation with a manager or HR? Or with a lawyer?
Customer: With my head of department and HR manager, but not a lawyer. I will be asked to provide an account of events, and I don't know what to do.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee, but not union member yet
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Well, apart from that I think the allegation is unfounded, no

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.

Please explain the circumstances in some more detail and please also tell me how long you have worked for this employer?

Customer: replied 7 days ago.
I work at the University of Cambridge, I've been employed there for around 5 years as an academic. The allegation relates to an incident after a party with my research group. After the party, an undergraduate student stayed behind and we engaged in activity of a sexual nature. At the time, I was under no doubt that consent was freely given. Subsequently, she has alleged that she was unable to give consent having consumed alcohol.
Customer: replied 7 days ago.
I understand that an internal investigation will follow, and I need advise on how to approach the investigation and how best to clear my name
Customer: replied 7 days ago.
*advice

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. It is difficult to advise you how to clear your name as we still do not know what evidence they have and how the investigation will progress and what further evidence will come out of that, including what the complainant will say about it. In the end, all you can realistically do is tell the truth, explain what actually happened and try to be as precise and consistent with your version of events as possible. The more your evidence is uncertain or has gaps the less credible it will be and you want to try and avoid that.

 

I will also explain what the law expects of an employer in these circumstances. 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:

  • Conducts a reasonable investigation
  • Follows a fair disciplinary procedure; and
  • 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 answer your query?

Ben Jones and other Law Specialists are ready to help you
Customer: replied 7 days ago.
Thank you, I think so. My instinct is to tell the truth, but I don't yet know what my accuser has alleged or what information they have given. I will have to await that information. Many thanks for your time.

All the best