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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 73814
Experience:  Qualified Solicitor
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My partner is in disciplinary for making an error of

Customer Question

My partner is in disciplinary for making an error of judgement and will possibly be fired tomorrow although he has an exemplary record.The top manager has been very unprofessional throughout the process..revealing to other employees that he will be fired without pay.How do we deal with this
JA: Was the termination discussed with a manager or HR? Or with a lawyer?
Customer: My husband is senior transport manager and it was his boss and HR that did the first disciplinary..the second was with someone else taking all the facts..then an adjournment until tomorrow
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: Unionized employees.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: My husband is not in the union but deals with union reps
Submitted: 12 days ago.
Category: Law
Expert:  Ben Jones replied 12 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Customer: replied 12 days ago.
Ok
Expert:  Ben Jones replied 12 days ago.

How long has your husband worked for this employer please and what specifically do you want to ask about this so that I can best advise?

Customer: replied 12 days ago.
No
Customer: replied 12 days ago.
Continue with text
Expert:  Ben Jones replied 12 days ago.

The pop-up offering you the chance to request a phone call is automatically generated by the site and you have already paid for a written response so that is the part I will continue helping you with as soon as you can provide the information requested

Customer: replied 12 days ago.
Ok continue with text
Expert:  Ben Jones replied 12 days ago.

The pop-up offering you the chance to request a phone call is automatically generated by the site and you have already paid for a written response so that is the part I will continue helping you with as soon as you can provide the information requested

Customer: replied 12 days ago.
Please continue
Expert:  Ben Jones replied 12 days ago.

How long has your husband worked for this employer please and what specifically do you want to ask about this so that I can best advise?

Expert:  Ben Jones replied 12 days ago.

Hello, I was wondering if you have had a chance to consider my query above please? I will need your response before I provide an accurate answer to your situation. Thank you and I look forward to hearing from you.

Expert:  Ben Jones replied 12 days ago.

Without the requested information, I can only provide you with the following general response, which will hopefully still answer your query. First of all, I am sorry to hear about the issues he has experienced in his situation.

His rights will very much depend on his length of service.

Less than 2 years service

The main issue in the circumstances is the fact that he has only been continuously employed at his place of work for less than 2 years. That means that his employment rights will be somewhat limited. Most importantly, he will not have legal protection against unfair dismissal. This basically means that his employer can dismiss him 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. They can proceed with a dismissal even if he had done nothing wrong and also without following any specific fair procedure or proving that any of the allegations are true.

As mentioned, there are some exceptions to this, in which case the 2-year rule does not apply. These include situations where the dismissal was wholly, or partly, due to:

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

- Taking, or trying to take, leave for family reasons including paternity leave, parental leave, adoption leave or leave for dependants

- Raising concerns about health and safety or other unlawful acts by the employer and being penalised as a result by being dismissed

However, if the dismissal had nothing to do with any of the above exceptions, he would not be able to challenge it due to not meeting the minimum service criteria for claiming in the Employment Tribunal. In that case his only protection would be if he was dismissed in breach of contract. That would usually happen if he was not paid any contractual notice period due to him, unless he was dismissed for gross misconduct. That is where he is guilty of something very serious which justifies immediate dismissal, without any notice pay.

In any other circumstances, he would be due a minimum notice period, as per his contract and associated pay. If he did not have a written contract in place he would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow him to work that notice period and pay him as normal, or they can decide to pay him in lieu of notice. That is when he is paid for the equivalent of the notice period but his employment is terminated immediately and he is not expected to work through his notice period.

More than 2 years service

If an employee has been continuously employed with their employer for at least 2 years they will be legally 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).

Therefore, the first step is to establish which of these reasons is going to be used to justify the dismissal. Not only that, but they must also justify that it was appropriate and reasonable to use it in the circumstances.

Finally, 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. Each of the potentially fair reasons will have its own requirements in terms of the procedure that needs to be followed in order to make it fair.

Pre-judging the outcome of a disciplinary will likely make it unfair as he has not been given a fair opportunity to defend himself. If that was to happen and he is dismissed then h can appeal first and then consider a potential unfair dismissal claim in the Employment Tribunal if necessary.

Expert:  Ben Jones replied 12 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.