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Vineet S
Vineet S,
Category: Law
Satisfied Customers: 2668
Experience:  Freelance Solicitor at Self Employed
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I’m looking for advice on gross misconduct case, management,

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Hi I’m looking for advice on gross misconduct case
JA: Was this discussed with a manager or HR? Or with a lawyer?
Customer: management
JA: Does the workplace operate with employees, freelancers, consultants, contractors or with unionised employees?
Customer: employees with union
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: the employment protocols have not been followed correctly in the case

Welcome to Just Answer, I am a solicitor in England and Wales and I will be dealing with your case today.

Kindly note, I am not available for phone calls at the moment, however I can easily assist you via this online chat.

I will go through your question and will get back to you with my answer shortly.

Meanwhile, please ignore any phone call request pop-up, they get generated automatically without any input from the expert, so I have no control over these requests.

Customer: replied 10 days ago.
Thank you

Hi there,

Could you please elaborate a bit on the incident?

Customer: replied 10 days ago.
I work in the prison, I was accused of using excessive force/assault on a prisoner. This was during a control and restraint incident. I spoke to the governor of the prison who reviewed the cctv footage and deemed it to be acceptable. It was since reviewed further by another member of staff who persuaded the governor to set up an investigation. A lot of timelines and investigation processes have not been followed. The investigation officers has acted impartially and has been found to be texting outside of work regarding other incidents. This incident happened on 07/01 I have a hearing next week but I haven’t received a letter to state what I have been charged with
Customer: replied 10 days ago.
Not acted impartially sorry
Customer: replied 10 days ago.
I have not been suspended from my duties I believed the prisoner had a weapon and was also actively trying to bite me

I will go through your question and will get back to you with my answer shortly.

Employer can only dismiss an employee if there has been gross misconduct. Gross misconduct is serious enough to dismiss on the first offence, whereas misconduct is likely to involve giving the employee a second chance after giving formal warning.

It is strongly advisable to give employees a clear indication of the type of behaviour employer consider to be gross misconduct. Employer can do so in the contract of employment itself or in a staff handbook. Identifying such behaviour in advance will help to demonstrate later on that you regard it as significant.

Including the incident of such mistakes, in the employment contract and staff handbook ,as gross misconduct which would result in dismissal.

If the matter goes to Employment tribunal , court decides following factors to determine if the dismissal was fair or not-

Did Employer have a genuine belief in the employee’s guilt?

How thoroughly employer investigate the alleged offence?

Was the employee given all of the information that had been gathered as part of the investigation?

Did employer give the employee an opportunity to state their case?

Were they entitled to be accompanied by a work colleague or trade union representative?

Did employer hold a disciplinary hearing, chaired by an impartial individual?

Did employer give them time to prepare for the disciplinary hearing?

Was the offence gross misconduct, as set out in your disciplinary procedures, and was the employee aware of the penalty that could be imposed as a result of that misconduct?

Were there mitigating circumstances or other facts that should have been taken into account, for instance, health or domestic problems, provocation or ignorance?

Were alternatives to dismissal considered?

If the above factors were not taken into account by your employer then you have a claim for unfair dismissal.

However you can not go directly to the Employment tribunal. You can start a process called ‘early conciliation’ through Acas - an independent organisation that helps sort out employment disputes.

ACAS can intervene and check with your employer regarding your dismissal

You can get in touch with ACAS by filling the below web form-

https://tell.acas.org.uk/find-a-solution-to-your-employment-dispute-and-start-early-conciliation

If you need further assistance, please let me know.

In the meantime, thank you for using Just Answers. Best wishes.

Customer: replied 10 days ago.
I haven’t been dismissed I have a hearing next week, my concerns are with the investigation process, I haven’t had any notification of the possible awards I could receive or time to ask for witnesses etc there are so many flaws in the investigation including the so called victim being interviewed without any witness and just the investigating officer, I have been given a letter to attend a disciplinary hearing but no offences have been outlined really,

Your employer needs to give all the information of this incident they have on record and what they have discovered in the investigation stage , so that you can prepare for the disciplinary meeting.

If the employer is not sharing the above information with you, then the investigation can not be classified as fair and impartial.

Customer: replied 10 days ago.
They have given me the investigation paperwork but I haven’t had a letter what I have been charged with or the possible outcomes.

Is this the first meeting regarding the incident?

Before the hearing, the employer should put in writing to the employee:

  • the alleged misconduct or performance issue
  • any evidence from the investigation
  • any other information they plan to talk about
  • the date, time and location of the hearing
  • information on the employee’s right to be accompanied to the hearing
  • the possible outcomes
Customer: replied 10 days ago.
No I went to the govenor who is the commissioning officer for the investigation and he asked me for my report and notified me via email he was happy with the justification but since that meeting the investigation was commissioned after concerns raised by another staff member

You can raise an appeal if you feel any stage of the disciplinary procedure was wrong or unfair

Customer: replied 10 days ago.
I’m aware of that is it right that the investigation goes forward even though it has not be conducted properly?

Yes, but employee can appeal if he/she thinks that investigation was not conducted properly as per the ACAS guidelines.

Customer: replied 10 days ago.
Sorry regarding the fact that before the hearing I should of had the possible outcomes if I haven’t had that what action should I take regarding that, I don’t really want to delay the hearing though as it has gone on long enough and I have a newborn baby
Customer: replied 10 days ago.
Also I had the investigation paperwork but I haven’t had information with what I am being charged with
Customer: replied 10 days ago.
Allowing me to advise whether I accept the charge and to call witnesses

You can make an appeal that possible outcome of the disciplinary has not been told to you in writing before the meeting.

Your appeal should be dealt with by a manager who has not been involved in your case before and who is senior to the manager who made the decision.

Customer: replied 10 days ago.
do you advise to carry out the hearing first then appeal the outcome with all that was wrong after?

It seems your employer don't know what they are doing here.

Yes, you can do that. However, as you have not been told of the possible outcome, you can make an appeal now as well, that correct procedures are not being followed here.

Customer: replied 10 days ago.
No the investigation has been flawed from the start such as approaching witnesses before the investigation has been commissioned

So, you can either make your appeal right now or can attend the meeting and then make objection regarding the improper investigation.

You have strong grounds for an appeal.

You can get further detailed information on the step by step disciplinary procedure and your right to appeal from the ACAS website here-

https://www.acas.org.uk/disciplinary-procedure-step-by-step

Customer: replied 10 days ago.
Thank you very much, I’m sorry to ask so many questions it’s just been such a stressful time when I thought it has all been dealt with by the governor when he initially reviewed the footage. This is the same person who said it was fine is now stating there is grounds for a misconduct hearing I have in writing that he accepted my account of my force during the incident should I bring that up too?
Customer: replied 10 days ago.
Sorry just one more thing the letter I have received stating the time etc the hearing will be held states I had been sent a letter on 9th March the. Further in the letter states the letter was sent on 11 March surely this is also not right to have inaccuracies like this?
Customer: replied 10 days ago.
A letter sent prior to my hearing date letter

As explained above , you have pretty strong case for making an appeal , even if things go wrong.

In the Employment tribunal , your employer would have hard time justifying this botched up investigation.

However , right now, you can attend this next meeting to see how things are shaping up , then make an appeal if things go out of hand.

Customer: replied 10 days ago.
Thank you so much it’s really appreciated

You are welcome.

Thank you for using Just Answers. Best wishes.

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