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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 47630
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was not feeling well half way through shift I had reported

Customer Question

Customer: I was not feeling well half way through shift I had reported to my oc health doctor that I suffer with my back but not taking meds at that time (a month before hand) I was given dehydracodeine for the painecided to take them on my break the side effects made me drowsy so I didn't feel I could work or drive I forgot lo clock off and the next day I went sick with my back pain but got a email saying I had been suspended after a couple days I was asked to go in and explain why I fell asleep in my car they sent me another email the next day say I had been sacked for gross misconduct due to company time theft even though I wasn't getting paid for the time do I have an case for appeal I have no warnings 100 percent attendance and been their for 2.5 yrs
JA: Thanks. Can you give me any more details about your issue?
Customer: they provided 5 witness statements saying I fell asleep in my car but would not verify their names , we also have no shift supervisor to report to
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Submitted: 1 year ago.
Category: UK Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. Were you taken though a formal disciplinary hearing?

Customer: replied 1 year ago.
I was emailed a hearing request date but they did not provide the 5 witness statements untill 24hrs of the hearing or from whome the statements where taken from
Customer: replied 1 year ago.
They sacked me for gross miss conduct under theft of company time
Customer: replied 1 year ago.
I did not clock off but i went on sick the next day and with no supervisor i informed manager i was not well the next day i have not been paid as i admitted i did not work those hours so i can mot see where the theft is and see this as a minir sickness discaplinary at most
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:

{C}· Conducts a reasonable investigation;

{C}· Follows a fair disciplinary procedure;

{C}· Has reasonable grounds for believing the employee was guilty; and

{C}· 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.

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 you were not actually getting paid for that time then it would weaken their position so certainly mention that, as well as the fact that it was a simple error, nothing deliberate on your part.

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. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response 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? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.