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Beni have a disciplinary hearing this thursday where i require repr…

Customer Question
hi ben i have a disciplinary...
hi ben
i have a disciplinary hearing this thursday where i require representation.
i do not currently belong to any trade union
the offence is for a gross misconduct charge which could lead to employment termination.
can you represent me
the basic case facts are
i am a on the road salesman using a company vehicle
my license was revoked for >6 points within 2 years of getting the license. i was not aware of this
i am being charged with
failure to inform the company my license was suspended and driving a company vehicle without a valid driving business.
Submitted: 2 years ago.Category: UK Employment Law
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Answered in 5 hours by:
6/2/2015
Solicitor: Ben Jones, UK Lawyer replied 2 years ago
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,475
Experience: Qualified Employment Solicitor
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Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What would yo like to know about this situation?
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Customer reply replied 2 years ago
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Customer reply replied 2 years ago
Ben can i be dismissed for this situation ?
Solicitor: Ben Jones, UK Lawyer replied 2 years ago
How long have you worked there for?
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Customer reply replied 2 years ago
since january 2013
Solicitor: Ben Jones, UK Lawyer replied 2 years ago
Apologies for not getting back to you sooner, I experienced some temporary connection issues last night and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.
The good news is that if an employee has been continuously employed with their employer for at least 2 years they will be protected against unfair dismissal. This means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.
According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances. In addition, they need to ensure that a fair dismissal procedure was followed and this would depend on which of the above reasons they used to dismiss.
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. The mitigating factors here are that you were not aware of the licence suspension so you need to make it clear why that happened, why you were not aware and see if you can show that it was not you who was in the wrong but the police/DVLA for not informing you correctly.
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
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Customer reply replied 2 years ago
ben i dont think they can sack me for misconduct as i didnt know anything about this incident and that my license was revoked?
they might be able to do so for capacity as now i dont have a license for the next 6-8 weeks. this is required for the job scope.it might be quicker and easier to talk over the phone re this. may i call you ?
My questions relate to:
i have worked previously in this role whilst moving over my license from a south african license to a uk license without a valid license temporarily for about a month - so can they really terminate me if this situation is only temporarily (i should have my license back within the next 6 -8 weeks)
if the meeting tomorrow is regarding gross misconduct and this cannot be proven, can they terminate on other grounds ie.. capacity/ illegality - (ie driving w/o a license) even though i did not know my license was revoked.Thanks
Solicitor: Ben Jones, UK Lawyer replied 2 years ago
I am not available today to discuss this on the phone as I am in tribunal but may be able to do so tomorrow. As this is an additional service it will attract a separate fee unfortunately but once I submit the proposal I will clarify that. So I will be in touch separately, hopefully later today to try and arrange something
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Customer reply replied 2 years ago
ben then can you please answer or advise on the questions on this format as my discipliniaru hearing is tomorrow and this is urgent
thanks
Solicitor: Ben Jones, UK Lawyer replied 2 years ago
Ok will do but won't be until late this evening burnout will get it in time for tomorrow thanks
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Solicitor: Ben Jones, UK Lawyer replied 2 years ago
Hello again, to answer your queries:
I dont think they can sack me for misconduct as i didnt know anything about this incident and that my license was revoked? – it is not necessary for you to have known about this, as misconduct can still occur even if you did not know about it. Also remember that the fairness of their decision is based on the investigation and what they reasonably believe had happened, so if their investigation shows that you should have known or did know and there is no specific evidence showing otherwise, they can still decide to dismiss. To be honest they can dismiss you anyway, that cannot be prevented, but it is then a matter of whether you can challenge that at tribunal.
If you cannot drive now because of a lack of licence, then they should not just jump at dismissal if it is known that you will get it back in 6-8 weeks. They should try and find you another job you could potentially do which does not involve driving, or perhaps place you on unpaid leave for the duration of the ban.
if the meeting tomorrow is regarding gross misconduct and this cannot be proven, can they terminate on other grounds ie.. capacity/ illegality - (ie driving w/o a license) even though i did not know my license was revoked – they could potentially dismiss for ‘some other substantial reason’ but as mentioned they should not immediately look at dismissal, they should try and see if that can be avoided by giving you alternative work but it is a possible outcome. You will have to see what happens after the hearing as it is impossible to predict at this stage, I can’t say you won’t be dismissed as that could happen, but at the same time do not automatically assume the worst.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
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Solicitor: Ben Jones, UK Lawyer replied 2 years ago
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