If your misconduct appeal has not been upheld and you have already been dismissed for conduct issues, then the chances are that the time to negotiate has already passed.
If you are not guilty of the misconduct you’ve been sacked for, you will probably have to start Acas pre-claim conciliation, commence proceedings and try and negotiate while at the same time fighting a claim.
It’s possible however that your employer will want to save money on legal fees and they will often make an offer on this basis. So you do have a chance, but the money you receive may not be as much as if you had negotiated at an earlier stage – had that been possible.
Misconduct claims are difficult to win for employees in tribunals. The employer only needs to show that they acted reasonably and that their decision to dismiss for misconduct was within the ‘range of reasonable responses’ open to them in the situation, and they will win the case.
Therefore, if you are accused of misconduct and your employer is threatening dismissal as one of the options open to them, that’s a good time to negotiate.
Talking to your employer if you’ve been accused of misconduct
If your employer has not offered a protected conversation , or a without prejudice meeting, you should suggest it. In misconduct cases, it is often better to talk things through with your employer in a without prejudice meeting, rather than commence correspondence.
This is because people have a tendency to defend themselves in correspondence, or to accuse their employer of acting improperly, and in a negotiation where misconduct has been alleged, this is not the way to go about things.