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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 44880
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My partner is a refuse driver and last week a pedestrian

Customer Question

hi. my partner is a refuse driver and last week a pedestrian waslked into the road as he was reversing the vehicle. He did hit the lady but did not run her over. he has been suspend from work pending an internal investigation by the council that employs him. He has been told by a supervisor (off record) that he suggests that he resigns and he thinks that they will fire him for gross misconduct.
the lady does not wish to take any further action and has confirmed that she is all ok (visited by employer), she claims it was an accident as it was raining as she had her umbrella up. she did not hear the reversing warning noise from lorry nor did she see the flashing lights on lorry. it is the company that employs him that are trying to press charges.
Submitted: 1 year ago.
Category: UK Law
Expert:  Jo C. replied 1 year ago.
Hi
Thank you for your question. My name is ***** ***** I will try to help with this.
Thanks for requesting me but I don't do employment work.
I will pass you onto somebody who does although I think he is off at the moment. I'm sure he will be on today sometime.
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. How long has he worked there for?
Customer: replied 1 year ago.
18 years
Customer: replied 1 year ago.
but not all of those years as a driver. not totally sure but about 9 year as driver
Expert:  Ben Jones replied 1 year ago.
Thank you and what specific queries do you have about this situation?
Customer: replied 1 year ago.
can they fire him under gross misconduct
Customer: replied 1 year ago.
he has no other driving incidents. the company policy is to have a loader see the vehicle back (but 99.9% of time) no one does in fact most loaders dont even have any training to do this. we found out that the company did a 15 minute training session at work today to cover themselves. also it seem that they have shown the recording from the veichle to other normal staff today. is this really allowed. can they threaten to fire you if you are a loyal long term employee.
Customer: replied 1 year ago.
as the company is council they are trying to cut costs. at the moment there are a lot of strikes due to pay cuts they want to do and also they will be moving in December 2016 so it seems that are trying to squeeze out long standing staff to avoid paying redundancy. alll staff are going to have to accept longer hours, less pay and re-sign new contracts shortly.
Customer: replied 1 year ago.
im a bit worried about your charges now.... ive only authorised the £3.00 for now. what charges are you considering to take to reply ? id appreciate a response to this before you proceed further
Expert:  Ben Jones replied 1 year ago.
Hello the charges are the deposit you paid, I cannot see the exact amount but it is about £30, is that ok?
Customer: replied 1 year ago.
yes max £33.00 is what i agree too for a good answer. just ive seen forums online where just answer continue to take payments from people accounts. i have not subscribed in any way, so i dont expect to see any additional money deducted. i have to go ofline shortly so i presume i will get my answer emailed soon ?
Expert:  Ben Jones replied 1 year ago.
to deal with any subscription issues please contact***@******.*** - people only have monthly fees deducted if they have actually signed up for a subscription , it does not happen if you have not done so. I will post answer on here shortly
Expert:  Ben Jones replied 1 year ago.
Misconduct, such as the allegations here, 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:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. So really it is a case of whether he breached any specific policies, if he did whether this was common practice and the employer knew it was going on and did nothing and the seriousness of the offence.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can 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 the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
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 hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you

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