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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
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Experience:  Expert in UK Employment Law
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We held a disciplinary meeting with and employee last week

Customer Question

We held a disciplinary meeting with and employee last week for insubordination. 24 hours notice was given, he was invited to bring a colleague or trade representative and following the meeting a letter was sent outlining our findings, giving him a written warning and giving him the right to appeal. In the meantime he has been put on weekly monitoring as his performance is poor and as a telemarketer has made 2 appointments in 4 weeks. He is the only one on this weekly monitoring as the other 2 in the department are making appointments and are also new. He has been with us over 2 years and his performance has been increasingly poor over the past 2 months.This evening we have received 2 letters 1 appealing the written warning below just stating:
• Unfair procedures were used
• The correct employment law was not followed.

He has also sent a letter stating the grievance below:
I am writing to tell you that I wish to raise a grievance. I am taking this action because of the following circumstances:
• Disciplinary meeting on 9th July @ 16.00 was not done as employment law states.
• I feel discriminated against in the office.
I am entitled to a hearing to discuss this matter; and to be accompanied by another work colleague or my trade union representative. Please reply within 5 days of the date of this letter.

What is our procedure from here, can we request in writing details of his appeal and what he thinks was not correct procedure prior to an appeal hearing date, also with regard to his grievance what he feels he is discriminated against. Do we have to go straight to a hearing for the grievance or can we correspond beforehand by email requesting facts?
Submitted: 1 year ago.
Category: UK Employment Law
Expert:  Ben Jones replied 1 year ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Has he provided details of why he believes the law was not followed?

Customer:

No only the bullet points listed

Ben Jones :

Ok the first observation is that you should have tried to give the employee at least 2 days' notice of the disciplinary. Giving someone just 24h will not usually be sufficient time to allow them to prepare for the hearing and get a proper defence ready in time. It is not a legal requirement to give that notice period but would be seen as fair and reasonable in most cases.


 


From what you have told me happened, I cannot see any other breaches of employment law.


 


As he has now raised a grievance and made an appeal you should follow these steps:



  • Acknowledge both letters and state that as he has raised a grievance you will deal with that first and place the appeal on hold. Once the grievance has been resolved you will return to the appeal and if necessary give him the opportunity to pursue that

  • You do not need to request more details of the grievance now as this will be done at the grievance hearing. This will be your opportunity to meet with him and discuss his complaints/concerns. Following the meeting and once you have a better idea of what the issues are you can deal with the grievance and make a decision.

  • Following the outcome of the grievance and assuming he is not appealing it, you can then give him the opportunity to continue with his appeal if he still wants to pursue it


 


 

Customer:

Can we ask him to put the grievance down in writing before the meeting so we know what we are going to be dealing with in the meeting and be for-warned? Also we have it in writing. Also can the MD (who held the disciplinary) hold the grievance hearing as we only have one other manager and they are normally out on the road on client sites. As we only gave 24 hours notice this might be the basis on the appeal for the disciplinary but as you say this in not breaching employment law, however if he does bring this up then would it just be the case to hold the disciplinary again adhering to what he thinks is the correct procedure?

Ben Jones :

Yes you may ask the employee to do so. You can advise the employee that the ACAS Code of Conduct says it "should be done in writing and should set out the nature of the grievance." If there is only one manager available to hear the grievance then you can allow him to deal with it as a result. If the only issue is the notice of the hearing then ask the employee what would have been different if they had been give longer notice and if there is extra evidence or defence they would have provided as a result. If there is, you should hold a re-hearing to consider this extra information and make a new decision based on it

Ben Jones :

I hope this has answered your query and 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

Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Ben


Is giving the employee 3 days to reply sufficient time and does this have to be working days? We are asking him to provide specific details of why he feels discriminated against and specific details of why he feels the disciplinary procedure was not followed correctly. We have asked for these is writing to allow us to investigate. Also as he is on performance monitoring what happens if he doesn't hit his targets and disciplinary procedures commence for his performance which is a separate matter and that the grievance is not related to his performance?

Expert:  Ben Jones replied 1 year ago.
I would say give him 5 days in total to get back to you. Any non-related disciplinary or performance matters can continue at the same time, you should just be cautious about related matters, which should ideally be placed on hold until the complaints that concern them are resolved
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
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Customer: replied 1 year ago.

Hi Ben


This is quite a long thread and I am happy to accept your response several times whilst we go through this.


 


We have received a response letter from the employee which states the below:


 


Following your letter dated 19th July I wish to confirm the following details with you.


Employment law


How to hold a disciplinary hearing


1 Gather the facts - the allegation, evidence, and the employee's past record. (we did this)

2 Try to resolve the issue informally first. If this does not work, raise the matter formally without delay. (we did this by discussing the presentation he had to do with him but he said he didn't want to do it)


3 Inform the employee in writing, explaining the reason for the hearing and when it will take place; allow the employee at least three working days' notice to prepare a case. (did all of this apart from gave 24 hours notice)


4 Arrange for any witnesses, or evidence you or the employee wants to present at the hearing, to be available.(notified him he could bring a colleague or trade union representative)


5 Tell the employee that they can bring a colleague (or union representative) to the hearing. (did this)


6 Review your procedures and make sure they conform to the statutory minimum three-step process. (? )


7 Prepare yourself to be calm and open-minded throughout the hearing; be ready to adjourn the hearing if tempers become frayed. (?)


8 Begin the hearing by explaining what will happen; set and keep to an agenda to maintain control of the hearing. (explained this)


9 Present the case against the employee. (did this)


10 Allow time for a response and consider the case from the other side. (asked if he had anything to say or any questions and he said no to both)


11 Clarify any mitigating circumstances for example, if the employee was unaware of the rules, or similar behavior is widespread. (?)


12 Encourage suggestions to help overcome the problem. (?)


13 summaries the discussion and adjourn to make any further investigations necessary and to reach a decision. (summarised at the end)


14 Consider how serious the offence is, what action it merits and any steps which could be taken to improve the situation. (did this)


15 Inform the employee of your decision as soon as possible in writing; issue and explain any warning. (did this)


16 Explain that the employee has the right to appeal; if possible any appeal should be heard by someone senior who has not been involved in the initial hearing. (explained that he could appeal - which he did)


17 Throughout, keep a detailed written record; ask the employee to sign any improvement plan, and emphasis the consequences of further offences. (took basic notes, he took none)


Simon none of this was done and the only other person present in the room was Suzanne your wife. I feel as the allegations were by you this should have been presided over by someone impartial, as I didn’t stand a chance. (Simon is the MD I am his wife but also the Financial Controller and work in the company full time, its not about standing a chance its about presenting the facts and based on these facts coming to an outcome.)


 


(What part of the above is employment law please.)


 


As for the discrimination


Following the letter of your decision dated 12th July you gave me a verbal warning concerning my performance, the month previous I was not the one who performed the worse, but the only one to receive a verbal warning. (He did have the worst performance and this was discussed in a meeting with the other telemarketer who came top)


 


Set unrealistic targets and to be reviewed weekly. (Targeted to book 3 appointments per week, prior to the 17th June he had hit this amount of appointments on various occasions. 2 new telemarketers have started and they have booked 2-3 per week over the past 5 weeks whereas this employee has booked 3 appointments in 5 weeks total. Therefore he has been put on a weekly target which is reviewed weekly, the other telemarketers aren't on this as they have been with us 1-2 months and are performing, he has been with us over 2 years and is not. Is this discriminatory? He is also getting regular training along with the other telemarketers)


Trust issues i.e.: access to shared drive so unable to do the stock work. (Access to this drive on the server was denied as he didn't need to see all the company information. Can set this back up or just let him see this on the shared drive)


Also have no access to employee forms as other employees have. (don't know what forms he needs but once again can set this up for the requested forms)


Your attitude to me in the office has changed and don’t know why as showed nothing but loyalty over the past 28 months (? - not sure what this is about)


 


Where do we go from here? Hold the discrimination hearing and discuss the above, at the end can we come to the decision that this is not upheld if we feel this is the case?


 


To throw a spanner in the works, we had a letter from one of the other telemarketers on Friday saying that they wanted to be moved away from him because she feels intimidated, de-motivated and doesn't like the way he is looking at certain parts of her body. She said that he is having a negative impact on her and he is affecting her performance. Guess this is a different issue altogether.

Expert:  Ben Jones replied 1 year ago.
Hello Suzanne, to deal with specific point separately:

6. This is old law - the three step procedure has not been law since 2009 - it has been replaced by the ACAS Code of Conduct

7. Not sure why he is mentioning this, a lot of what he has written is simply guidance on how to conduct a disciplinary procedure and is not strict law

11. This would have expected you to consider whether the employee's actions could have been mitigated by something, so the example they give is if you are disciplining him for breaking certain rules or procedures, was he actually aware that these rules and procedures existed? Did you make him aware that such rules apply to him, etc

12. This would suggest that instead of disciplining you may be expected to try and help the employee to overcome the issues at hand, for example by offering more training, if appropriate


So based on what you have told my, claims that none of this was done is far from the truth. Also explain to the employee that this appears to be the old Statutory Disciplinary Procedure. The new disciplinary procedures are set out under the ACAS Code of Conduct: www.acas.org.uk/CHttpHandler.ashx?id=1047

Also the ACAS Code of Conduct does not place a strict requirement on employers to follow it. They are expected to follow it and breaches of the Code can allow a tribunal to increase an employee's compensation by up to 25% if they have a valid tribunal claim, for example one for unfair dismissal or one for constructive dismissal. Any breaches that you may have made are minor and I would not be too concerned about his claims. If he wants to take this forward he would either have to be dismissed or resign, then he has to take his claim to a tribunal, be successful and only then will the Tribunal consider an uplift on his compensation for any alleged breaches of the Code.

As for the discrimination issue, discrimination can only occur if an employee is being treated detrimentally due to a protected characteristic. These can only include the following: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; gender; sexual orientation. No detrimental treatment for any of the above means there is no discrimination in law. He may be complaining about general unfair treatment but that is not discrimination, although you can consider dealing with this complaint separately, for example by treating it as a grievance and investigating it by following the ACAS Code of Conduct, which has a section on how to deal with grievances.

Finally, the issue raised by the other employee. I suggest you meet with her to discuss her concerns and try to resolve something informally. If that is not possible then you may have to consider treating this as a grievance as well and go through the same process with her. In the end whatever your investigations find for both complaints will have to be considered by you and appropriate action taken.
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

For Ben Jones


 


Thanks Ben for the comprehensive reply. To sum up, we don't need to hold a discrimination hearing as we could say that this is not discrimination, however if we like could hold an informal meeting to discuss what he thinks is unreasonable treatment? With regard to the appeal do we still have to hold this as the basis of his appeal was that


• Unfair procedures were used
• The correct employment law was not followed.

Expert:  Ben Jones replied 1 year ago.
there is no such thing as a discrimination hearing, any complaint starts as something that you can deal with informally or if it becomes clear the employee wants to raise a formal complain about it then it should be treated as a grievance and a grievance procedure held.

I suggest you still hold an appeal as it is the employee's right to have one but once that has been held and you have considered the grounds they have used for appealing you may then reject the appeal if necessary
Customer: replied 1 year ago.

Sorry I meant a grievance hearing. So we hold this and state that the grievance for not holding the disciplinary as law states is not a law (therefore we can dismiss this) and the grievance for him feeling discriminated against is not discrimination (therefore we can dismiss this too)


We can then hold the appeal meeting to discuss this - although this would have already been discussed in the grievance meeting as this was part of his grievance (then reject to appeal).


 

Expert:  Ben Jones replied 1 year ago.
Treat the appeal and the grievance separately. Discuss the reasons for appealing at the appeal only and the reasons for the unfair treatment/discrimination at the grievance only - try not to overlap the issues
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Ben


Following up on the above, the employee was put on performance monitoring last week and was given a verbal warning for not hitting his targets. He was told he was being monitored on a weekly basis due to his performance and he is due for his weekly review tomorrow. Once again he has not hit his target of 3 appointments per week as he has only made 1 appointment. This was not what his disciplinary was for however part of his grievance is that he is being monitored weekly and has unrealistic targets. Can we go ahead with the performance review tomorrow as the grievance hearing has not yet been heard so do we proceed as normal and if so as he hasn't hit his target he would be on a written warning. Is weekly monitoring ok to perform as monthly is too long a time. he is getting training on a weekly basis.

Expert:  Ben Jones replied 1 year ago.
Hello, weekly monitoring is fine as long as you do not just make a decision based on a week's worth of performance.I suggest you delay any further formal performance reviews until his grievance is heard because at present you know that there is an ongoing issue with this
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi again Ben


 


With regard to the female employee who put in a complaint of intimidation etc against the said employee whom we are in a grievance procedure with, do we bring this up with him and let him know that a complaint has been made about him? If so how do we handle this please as she wants to be moved away from him?

Expert:  Ben Jones replied 1 year ago.
If a formal complaint has been made against him you may have to consider treating this as a grievance too and investigating it separately. You can speak to him as part of the investigation and get his side of the story then you can make a decision on how to proceed
Customer: replied 1 year ago.

Thing is she wants to remain anonymous as she doesn't want to feel even more intimidated by him. Can we show him the body of the letter without her name on to show him what this is about. Also how would we proceed with this and would possible outcomes are there?

Expert:  Ben Jones replied 1 year ago.
if she wants to remain anonymous then you would have to try and respect her wishes and only show information which would not reveal her identity. At the same time, if that is unlikely to happen, for example because he works with a limited number of people and finding out who she is would be easy from the information she has disclosed anyway, then there is an argument that anonymity would be pointless and you should inform her of that in advance.

The main requirement is that the person knows the allegations against them and has enough detail about their case to be able to defend themselves.

You need to investigate the allegations first and consider each side of the story. if there is evidence of misconduct then you can consider taking formal disciplinary action against the employee by going through the formal disciplinary procedure and it could end up in a warning. Too many warnings can eventually result in dismissal.
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 12 months ago.

Hi Ben


Do we have to hold a formal grievance hearing with the employee to investigate his side of the story where he is given notice and can have a companion attend, or can we just have an informal meeting where we tell him he has had a written complaint against him and ask him for his comments?

Customer: replied 12 months ago.

 


Hi Ben


Do we have to hold a formal grievance hearing with the employee to investigate his side of the story where he is given notice and can have a companion attend, or can we just have an informal meeting where we tell him he has had a written complaint against him and ask him for his comments? Also as there are only 3 in the telemarking team (2 female and the 1 male) to keep the females' anonymity as she has requested that she is moved away from him could we just move him away from the 2 girls instead to another part of the office?

Expert:  Ben Jones replied 12 months ago.
Hello, sorry I have been away for a few days. If you are investigating allegations raised in a grievance against someone, then the person against whom the complaints have been made (I will call them person A) does not have to be invited to attend a formal grievance meeting. You need to hold a grievance meeting with the person who raised the grievance (person B) but the investigation can be an informal meeting where you interview person A about their side of the story. You can move him as suggested if there is evidence that he has been in the wrong.
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 11 months ago.


Hi Ben


We had a meeting with person A and they deny all allegations from person B. The issue is before the complaint from person B it was highlighted in a letter to person A following his disciplinary (which he is appealing on the grounds of unfair procedures) that by refusing to do the training session he had demotivated the team. Where do we stand now as it is one option against the other, however there was evidence that he was demotivating by the statement in our letter. In our letter to him we also stated that the consequence of not making the required improvement may result in disciplinary procedure which may result in dismissal.

Expert:  Ben Jones replied 11 months ago.
The key is to investigate this in a reasonable way and use the evidence to take further action, if necessary. I wouldn't say that failing to improve is something that can amount to dismissal but it would be a performance issue and with sufficient warnings and failure to improve in the long term it can result in dismissal.
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 11 months ago.


Hi Ben


We are holding the grievance meeting with the employee tomorrow (person A), the MD has another employee in there to take notes (not me) and we have notified person A of this. Person A has just now asked another employee to take notes for him and they have agreed, however they are one of our helpdesk engineers and this will be taking them away from their core job of answering fault calls from our clients. What do we do here as the person taking notes is neutral or do we have to go with person A and whom he wants in with his even though this will impact on our service?

Expert:  Ben Jones replied 11 months ago.
Hello, the employee has the right to be accompanied by a trade union rep or a colleague of their choice. If the chosen companion is unavailable at the proposed time for the hearing, the employee can suggest an alternative time which is not more than five working days later. If that time is reasonable you must rearrange the hearing for that time. So you should try and rearrange the meeting for a time when all parties are available to attend.
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

The employee has requested time off on Monday to attend a hospital appointment for his wife. We have asked for a copy of the evidence of the appointment for his file, he has said that we can see it but can't take a copy of it and have to ask his wife for her approval as this falls under the data protection act.


Is this the case?

Expert:  Ben Jones replied 11 months ago.
The contents of the letter are likely to amount top sensitive personal data and should not be held by you unless you have the person's consent. So if you wanted to make a copy you would need to obtain his wife's consent as she is the data subject of this information
Customer: replied 11 months ago.


he has just showed an appointment card with her name and a number on it. No hospital details or appointment date, can we ask for the hospital name and what time the appointment is so we can call to confirm this with the hospital, we think that is could be a fake appointment card and he is just taking the time off.

Expert:  Ben Jones replied 11 months ago.
You can certainly ask for that information but the hospital are unlikely to release any further details about this without the patient's consent as they will themselves be restricted under data protection rules. I suggest you ask for more official proof, such as a letter confirming the appointment
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Hi Ben


The grievance and appeal were held yesterday and the employee acknowledged that he had the wrong point on following the procedures and law and agreement was met with regard to his grievance. During the meeting he said to the MD that he felt that the MD's attitude towards him had changed and that he felt that 'quite frankly his attitude stinks'. Is this insubordination, and if so does this justify gross misconduct.

Expert:  Ben Jones replied 11 months ago.
No this is not insubordination, this occurs when an employee refuses to follow reasonable instructions given by the employer and I would certainly no go as far as saying that this comment would amount to gross misconduct. The employee has the right to voice their concerns if they feel they are not being treated fairly and whilst the language used may not have been ideal do not try and victimise them for this
Ben Jones, Solicitor
Satisfied Customers: 38351
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you
Customer: replied 11 months ago.

Hi Ben


The employee whom we have been talking about handed their notice in today stating 'that after taking legal advice and being made to feel like I am being pushed out I would rather leave on my own terms'.


 


Following the appeal and grievance the disciplinary was upheld with a written warning and the grievance issues were dealt with in the meeting, he agreed to all points.


 


He was due this week to have another disciplinary with regard to the letter from the other employee who lodged a grievance that he was intimidating her and another performance review meeting. We feel that we have gone through the correct procedures, haven't taken any responsibilities away from him, treated him the same as the other staff with regards to targets and now feel that as we have taken him down the disciplinary and monitoring route he has taken offence to this and has handed his notice in and is intimating that he is going to go for a constructive dismissal claim.


 


He has just sent an email requesting the letter from the other member of staff and saying that the MD refused to him copies today and said he would forward them to him. This is true as the MD didn't have the letter on him and will forward it. The MD is going on holiday on Friday for a week so is it reasonable to get the information to the employee on his return as he has to gather what he wants?


 


We are also investigating a possible fraud by the employee as when his wife was working there it has now come to light that she may have been making telemarketing appointments for him (she was also a telemarketer) and he was claiming the appointments were appointments he made. This means that he was lying to keep his position and not only that rises were given to him on the basis that he was doing a good job. Since she left in March his performance has got worse and hence the monitoring and further training. It now seems that as she was making these appointments they were fraudulently keeping his position in the company.


 


He is requesting the letters for his solicitors so they can take further action against us if they feel fit. As we may now have a case to put against him for fraudulent activity what is our position about providing the documentation he requires whilst we establish our legal position.


 


 

Expert:  Ben Jones replied 11 months ago.
Hello again, if the person who has access to the documents he wants is away then it is reasonable to wait until they return. If they are just away for a week then that is not an unreasonable delay, had they been away long-term then alternative arrangements should have been made to disclose this information.

Can you please clarify exactly what letters he needs from you?
Customer: replied 11 months ago.

He would like a copy of the letter that implicated him in the grievance from the employee who said that she was being intimidated and wanted to be moved away from him. Also a copy of the typed notes for the grievance and hand written notes from the grievance from both witnesses.


He stated yesterday that we would be hearing from his solicitor and ACAS so it seems that he is proceeding with a constructive dismissal claim.

Expert:  Ben Jones replied 11 months ago.
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