Hello My husband was dismissed from his job as they say he falsified his application .He stated that he was awaiting the result of an exam and they are saying now that he would of received an answer before the interview.We contacted the exam board who said the results take approx 10-12 weeks .Also at the time we were lucky if we had one or two post deliveries a week.We do not recall when it arrived and they cannot confirm when it was sent out to us.The job was not on qualifications but on competency based questions and we argued that there was another person who was more qualified than my husband so why didnt they choose him?He was dismissed for gross misconduct although they started this procedure in July2011 and dismissed him yesterday 1st May 2012.Is there any advise or route you could direct us down please? Thank you for takinf the time to read this Regards XXXXX XXXXX
Province/Country relating to question: uk
Nothing as it only happened yesterday 1st May
Hello and thank you for your question, which I will be happy to assist you with. Please let me know how long did he work there for?
Hello Ben Within this organisation 15months .he works for the NHSand they were moving and downsizing depts prior to this post he was doing the job for over 4years.
did they conduct an investigation and hold a formal disciplinary hearing?
After they asked him to confirm when he got his results they had a hearing in Feb/March
ok let me just get my advice ready please
An employee’s alleged misconduct is a common reason for an employer taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. The misconduct could either be a single act of serious misconduct or a series of less serious acts over a period of time. It is usual for employers to have a disciplinary policy in the workplace, which would contain examples of what amounts to misconduct, but in the absence of one it would be down to a common sense interpretation of law and fact.
In order to justify that a dismissal on grounds of misconduct was fair, the law requires that:
Investigation - what is a reasonable investigation depends entirely on the circumstances and what resources are available to the employer. A reasonable investigation would generally include interviewing witnesses, obtaining available documentary evidence, etc. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation, like one that would be expected of a court.
Disciplinary hearing - if the investigation shows evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing to answer the allegations. They must be given prior notice of the meeting, details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. Legal representation or family/friends are not allowed, unless the employer agrees. At the disciplinary hearing the employee must be given the opportunity to defend the allegations. The employer must take the employee’s representations into account before making a decision.
Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty of the alleged misconduct, then they can go ahead and dismiss the employee if necessary. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and clean disciplinary record should result in the employer giving more thought into deciding what action to take.
Sanction - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. To be able to justify dismissal as being fair, it has to show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that dismissal was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
If you have any doubts about any of the above and believe that the employer has not conducted a reasonable investigation or followed a fair procedure, you have the option of appealing to the employer first. If the appeal is rejected you can also consider submitting a claim for unfair dismissal in an employment tribunal. There is a strict time limit of 3 months less a day from the date of dismissal to issue a claim and you need at least 1 year’s continuous service to qualify.
Hello Ben Thank you for that info I am not very good on the computer and need to print our conversation out .I have tried to print but it is only giving some of it what can I do please?
I suggest you simply copy and paste this conversation into a Word document. You can then save it or print it and refer to it in the future as necessary.
Hello Ben Thank you for your advise I feel I can now go forward with your help
My pleasure. Unless you need further help, I would be grateful if you could please press Accept before exiting. Many thanks and all the best.
Expert in UK Employment Law
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