I have just been fired. I had training on a forklift truck two months ago and was asked to work nights - after the shift I was putting the fork life away and hadn't put the forks down so knocked a plasterboard wall down. They have assumed I was going too fast and not taking enough care. I have apologised and said it was an accident but after being suspended for a week they have today sacked me.
System of Law: England-and-Wales
Nothing as I'm not sure what to do
Hello and thank you for your question, which I will be happy to assist you with. Please let me know how long did you work there for?
ok and were you taken through a formal disciplinary?
what was your disciplinary record like?
and is there a specific policy which you are alleged to have breached?
ok let me 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:
I will deal with each separate part below:
1. 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.
2. 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.
3. 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.
4. 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.
just the last one, what was the last sentence you read?
Do you have any questions on the above?
ok that will go under an argument for lack of consistency in the employer's approach
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no problem, would be grateful for your rating so that I can mark this question as closed, thanks
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