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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
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We have an employee who was manning our showroom yesterday

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We have an employee who was manning our showroom yesterday and after a disagreement over the telephone with one of the shareholders as he had handled a manner incorrectly he threatened to close the shop and go home. He then put the phone down. We then immediately visited the shop to find he had carried out the treat and locked up in the middle of the afternoon of trading.
How should the matter be handled and IF he turns up tomorrow. I am in favour of dismissal.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long has he worked there for?

PS: I am just travelling at present so there will be a delay in responding but you will hear from me early this afternoon at the latest, many thanks


He has worked for us 2 1/2 years

Ben Jones :

Thank you for your patience. This is indeed a potential misconduct matter and whilst dismissal could eventually follow, you need to ensure that you have followed a fair procedure because they will be protected against unfair dismissal.


As far as the law stands, misconduct 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.


There is no list of offences that could amount to GM, and it will often depend on the circumstances. However, closing down a shop in the middle of trading, without good reason or instructions from the employer is likely to be a serious enough act to justify gross misconduct. It has affected the business in a serious way, lost income, affected their reputation, in general it has placed the business into disrepute.


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.


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. However, in this case dismissal could be justified.


Follow the above and you could justify a dismissal as being fair. If the employee does not turn up and refuses to answer any requests to attend a disciplinary, you can make a decision in his absence based on the evidence you already have.


Ben Jones :

Please let me know if this has answered your query or if you need me to clarify anything else for you in relation to this?


Hi Ben,


Sorry just to clarify, if he turns up tomorrow for work as normal should I suggest to goes home as suspended until I arrange a formal meeting to discuss and should he be sent home on full pay?

Ben Jones :

Yes you may suspend him if necessary but it has to be on full pay and should not be for longer than is actually necessary


Thank you, XXXXX XXXXX dont want to handle things incorrectly or say anything I shouldn't and feel that if he's suspended on full pay as you suggest it gives me time to think about moving forward

Ben Jones :

yes but remember that suspension is not a form of punishment and should only be used as a precautionary measure and only for as long as is necessary, so as soon as it is not an issue he should be allowed to return


One last question Ben, if he does not turn up in the morning how long i.e how many days do I have to give him to make contact before dismissal? Also slightly complicated as he has a set of keys for our premises

Ben Jones :

you can start the disciplinary process straight away just ensure you have followed the steps outlined. So you can investigate then ask him to attend an investigatory meeting straight away. If he does not turn up you can schedule a disciplinary and give him a couple of days' notice advising him that if he does not attend you can make a decision in his absence


ok, thanks I think that covers everything.

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