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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38575
Experience:  Expert in UK Employment Law
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I am facing a disciplinary today for gross misconduct can I

Resolved Question:

I am facing a disciplinary today for gross misconduct can I resign at the hearing?
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. You can resign at the hearing but you would be expected to serve your contractual notice period, which means that in the meantime the employer can still make a decision to dismiss you and that is what the official reason for termination would be.

Customer:

So there would be no point in resigning, what if I failed to turn up at the hearing

Ben Jones :

if you failed to turn up without reasonable cause they can go ahead and make a decision in your absence

Customer:

let me state what has happened to me in the past month with the company, then you might have some insight as to where I am at.

Customer:

I was disciplined for dereliction of duty in as much as I failed to report an accident, which there was no accident, it was a member of staff who had been off sick, he returned to work to early after an operation. His fist shift back he complained at the start of shift to some of the employees he was in pain, I placed him at start of shift as a trainer to up skill personnel, he took it upon himself to scrape the oven bed with a scraper, at this time he must have over stretched, this caused more pain so he came to see me and I sent him home?

Customer:

the company then disciplined me without an investigation and gave me a written warning. I appealed this but it was upheld, the day of my appeal they suspended me for another allegation this is the one I am facing today.

Ben Jones :

how long have you worked there for?

Customer:

just over 4 years

Ben Jones :

there are a couple of options really - one is to resign with immediate effect citing constructive dismissal because the employer has failed to follow procedure and you believe they are treating you unfairly. The other is to still attend the hearing, defend yourself and see what the outcome is. You can then appeal and if unsuccessful, assuming it was a dismissal, you have the chance to consider a claim for unfair dismissal in the employment tribunal

Customer:

The second allegation is very serious to them but it is a complete stich up and has been done with malice as far as I am concerned?

Ben Jones :

I cannot comment on the fairness of validity of this allegation - I have not been involved in the process and d not know who is right in this case. Whatever the allegation in order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:



  • Carries out a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.


 

Customer:

This disciplinary is for Sexual harassment and inappropriate conduct?

Ben Jones :

that can be gross misconduct

Ben Jones :

but it depends on what the investigation finds

Ben Jones :

what evidence they have and they will make a decision based on that

Customer:

yes I know it is a very serious allegation but it simply is not facts, please let me enlighten you for more than 3 years a number of staff mainly 4 supervisors and myself who is a shift manager have had a laugh and joke? nothing more but the person who has placed the grievance was the main participant in all the goings on, she is like a predator always trying to get a man. She met a man at wotk who is a Muslim and they don't condone that type of behaviour, so he got her to put in this allegation against only me?

Ben Jones :

I understand but the employer will have to investigate the allegations and will make a decision based on what they find, I cannot say what the outcome would be and you still have the chance to defend the allegations at the disciplinary. However this is a separate topic and going back to your original question - you can resign at the disciplinary or even before it but it does not mean the employer cannot still find you were guilty and claim you were dismissed

Customer:

It sounds like I am in a no win situation here, I have know for some time that they no longer wanted me in the company?

Ben Jones :

whilst that may be the case it is certainly not the end of your legal rights - you can appeal the dismissal and after that can also consider a claim for unfair dismissal

Customer:

Ok and thanks for your advise I may come back to you after the hearing regards Rob

Ben Jones :

yes please do if needed - always happy to help as required and you can also ask for me by name, all the best for now

Customer:

Thank you if you finish the chat I can leave the ratings

Ben Jones :

you should be able to do so now, thank you

Ben Jones, Solicitor
Satisfied Customers: 38575
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you

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