Disciplinary Hearing - 2 weeks short of 2 years continuous service

[Gerrard2023]

Evening all,

Firstly, hello to all. I am new to the forum and so apologise in advance for any stupid moments.

I was seeking advice regarding my situation, I am pretty sure there is not much I can do but any advice is appreciated.

So the basic's without going into war and peace:
A couple of weeks short of my 2 years continuous service, I was suspended by my company for Gross Misconduct and then dismissed in a Disciplinary hearing. I was given the right to appeal which I have done and an appeal meeting has been proposed.
The reason for appealing is regarding procedure, such as failing to furnish me with any evidence/witness statements before the disciplinary hearing.

My understanding is that as I am short of my 2 years continuous service I have no or little employment rights. However, I have been given the right to appeal, so what does this all mean? surely they could just turn round and say goodbye.

Thanks in advance.

[Gerrard2023]

Evening, how do I move this to the employment discussion forum. I don't know how my post has ended up here.

Cheers

[ULA]

Hi Gerrard2023 thread moved to employment.

As you say they could just terminate your employment as you are just short of your 2 years service however there could be a few things that mean they are going through a disciplinary process including giving you the right to appeal:

1. The very reason you are so close to the 2 years would suggest they may have been advised that they should follow a disciplinary process.
2. There are situations were a dismissal under 2 years service could be considered "unfair" but this is only in a limited number of situations such as discrimination.
3. It may be within the company's disciplinary policy that even for staff with less than 2 years service a formal process will be followed. Its not common but I have seen it in a limited number of companies.

[WikiOne]

Hi Gerrard2023,

You might be tight on the precise number of days before your 2-years anniversary, but you should know that your *statutory notice* may well take you over the 2-year anniversary threshold. Let me explain...

There are 2-kinds of notice within contracts of employment - contractual notice, and statutory notice.

Your contractual notice is the notice that's in your contract - simple. It must be at least the statutory minimum, or likely, longer. Statutory minimum notice is 1-week, if you have been in your job for more than 1-month.

Your statutory minimum notice is different - its a legally required notice that your employer must give you before terminating your contract. Importantly, it is NOT possible to 'PILON away' statutory minimum notice - which is, in your case 1-week.

If that stretches your employment over the 2-year length of service mark, you might be able to argue your case that you are entitled to fair process, and if not, you might be able to then claim for unfair dismissal.

Other than this; you might be entitled to claim for discrimination if your dismissal was linked in some way to any of the 9 protected characteristics detailed within the 2010 equality act, which includes "disability". Around half of people in the workplace have disabilities, and so it might be worth checking to see if a disability, under its definition of "any physical or mental health condition which has an adverse, long-term effect on normal daily activities" might have impacted your unfair treatment.

You may also be able to claim for something called "automatic unfair dismissal", which does not have the 2-year length of service requirement. This is when an employee is dismissed for making some kind of statutory request, or for a reason which is protected by statute. For instance: whistle-blowing, making a statutory flexible working request, trade-union membership etc... (there are around 60 reasons so I won't go into all of them here).

Hope that helps!

[Gerrard2023]

Hi ULA and WikiOne thank you for taking the time to respond.

I believe that you may both be right, as the suggested date for the appeal will be after the 2 year continuous date. So if that is the case is it worth going through with my appeal?

In terms of the Gross misconduct, although very trivial, I am guilty. When I say trivial, people have either laughed or been shocked that I was dismissed.
So my reasoning for appealing is because I believe my company failed to follow the correct procedure, reasons listed below;
Failed to notify me of the potential outcome of my disciplinary hearing.
Failed to provide minutes of the previous meeting until the disciplinary hearing.
Failed to tell me who would be carrying out the investigation.
Failed to furnish me with any evidence/witness statements, prior to disciplinary hearing. I still do not know the date of the offence.

An additional issue I have, is that my company van had been emptied of all my possession without my knowledge and at the time of my disciplinary was carrying out deliveries. I therefore believe my Disciplinary hearing was nothing more than a box ticking exercise.

Are any of these valid reasons?

Thanks

[WikiOne]

Hi Gerrard2023,

When it comes to the company's decision to dismiss - in this case, it will likely be theirs, and theirs alone, with little grounds to challenge unless we can establish potential for you to claim that the dismissal was unfair (IE, that your statutory notice takes you over the 2-year threshold). In this case, you'd then be able to argue the points you've made above, about how the company failed to go through a full and fair procedure.

Until we can establish unfair dismissal, discrimination, or automatic unfair dismissal, there isn't really that much we can do.

On your appeal: usually, in cases like this, your employment will be terminated with immediate effect, but the appeal will "reinstate" you without loss of pay, if at the appeal you are not found to have been guilty of the allegations. Your appeal (it would seem) does not form part of your employment/notice period - this is something you'd need to do outside your continuous service, and so the timing of the appeal won't take you across the 2-year mark.

[Gerrard2023]

Evening WikiOne thank you for your response. I am sorry I have not responded sooner.

If I have understood your post correctly, I am not due any statutory notice as I was dismissed for gross misconduct and therefore any failures in the way they have managed the process are irrelevant.

Can I counter with a grievance?

Thanks

[atticus]

I think the question is whether, had you been entitled to receive statutory notice, that would have taken you over the 2 years.

[Gerrard2023]

I think the question is whether, had you been entitled to receive statutory notice, that would have taken you over the 2 years.

Evening atticus , thanks for clearing up my mis-understanding. Looking at my employment contract I am only entitled to one weeks termination notice if I have been employed less than 2 years. So this leaves me 6 days short.

[Gerrard2023]

Firstly, I really do appreciate members taking the time to read my scenario and advise where possible.

If I have interpreted the advice from the forum/ACAS correctly, due to the fact I have not qualified for 2 years continuous service. I do not have the right to challenge my (former) employer's decision, even if they failed to follow a fair dismissal process. As a result I am going to retract my appeal request.

I understand that my following questions may lead some of you to be repeating yourself, for which I apologise. I just want to clarify, that there is nothing I can do to void the original decision, on the basis that they failed to follow a fair procedure. Additionally, can anyone think of any other grounds to dispute the outcome.

Thanks again.