Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.
I have worked there for 4.5 years.
Our pay is structured on performance related bonuses. So I am more concerned with that element of my pay than salary. Can several peoples' act as evidence, and how accurately would their accounts have to add up?
The accusation is that I have tried to approach people to join me on opening my own office, or taking them with me to a rival (I am likely to be moving on). I actually have no plans to open an office, but may have speculated on doing so in a drinking session, genuinely don't recall if so.
This is quite urgent, so I can work out my plan of action. So if you feel you may not be able to deal with the issue quick,it may not be worth pursuing at this time.
is there a specific restriction on doing what you are alleged to have done?
The only restricition I can see that may apply is 'being guilty of conduct which brings, or may bring the company into disrepute'
The allegation against you is a type of misconduct, which is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious 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:
I will deal with these requirements in more detail:
1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. 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.
2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should 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 statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.
3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.
4. Penalty - 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. A dismissal can be fair if the employer can meet the above requirements.
If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.
I find it highly suspicious that several people have emailed the same allegation. There are only a potential 12 people it could be. So 3 or 4 emails in a short period of time doesn't seem right. I can't imagine that many would raise a death threat with management, let alone drunk talk of moving office.
2. No notice, a quick word in the ear to have a meeting. Sketchy details, i.e. They've had several emails, no details beyond that.
You appear to have been suspended so far and only had investigatory meetings rather than a formal disciplinary, is this not the case?
Yes. I thought you were saying I need notice for that.
point 2 relates to the formal disciplinary hearing
Fine. Not there yet.
So my question is. Do multiple accusations amount to 'evidence'? As I understand one word against another is often dismissed.
yes they can amount to evidence but that would all fall within the employer's investigation. To ensure that they comply with the requirement of conducting a reasonable investigation they could for example interview the people who are supposed to have made these comments to get more details. In the end the employer will have to make a decision based on the information they have
Ah ok. As I thought, seems bizzare in my case, but understandable. Maybe I'lllearn to keep my mouth shut.
Just bear in mind that the level of proof in a situation such as this one is nowhere near as high as for example in a criminal court where one has to prove that something happened beyond reasonable doubt. An employer just needs genuine belief following a reasonable investigation
A type of misconduct, or gross misconduct?
That seems wrong in this case as they are fully aware I am likely to be leaving, so they have little interest in finding in my favour
bringing the company into disrepute can be gross misconduct but it will vary from case to case.
Is this a case of bringing a company into disrepute though?
yes it can potentially be, you are unsettling the staff which could have an impact on the company's productivity/reputation, however it is not the clearest example and other offences would usually be used more frequently
I think in this case unsettling staff would be a very strong argument for gross misconduct then.
it has happened in the past, but then again the severity of the allegations will depend on your actions. A drunken chat over potential moves may not be treated as seriously as a calculated attempt to poach staff
Again, in this case they have littleinterest in finding in my favour as they know my chances of leaving are high.
If its based on the companies beliefs, they can pretty much decide what they like
I cannot comment on whether that is the case or not and only time will tell I'm afraid. But it is not jut their beliefs, that is the final requirement, it still has to be based on the investigation they conduct first
Ah yes the investigation, asking the same people who've email them, the same questions. Wonder what the outcome of those talks will be.
Thanks. A few days off nonetheless.
Have a good night.
An after thought. Would the two weeks between the initial accusation and my suspension not deem the issue to be less serious?
no not necessarily, especially if more evidence had come out in between. Also a suspension is not an indication of guilt and is not punitive, it is simple a precautionary measure
I would be grateful if you could please take a second to leave a positive rating - your question will not close and I can continue providing further advice if necessary. Thank you
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