Could someone point me the right direction regarding spent convictions and dismissal. It concerns a dismissal case where the position the employee was employed in was not exempt from the Rehabilitation Offenders act.An employee was convicted by Fraud by False Representation, adding amounts onto his household burglary claim. He did not tell his employer, until the employer asked him about it after receiving an anonymous email. He told the employer after he was questioned. The employee knew about this pending conviction and was going to support the employee through it. Allowed the employee to continuing working for 1 month after confirming with the magistrate’s court that the employee had pleaded guilty to fraud by false representation. After his crown court case the employee reported back to the company, and that some spent convictions were mentioned but he had these as a minor 10 – 11 years ago. The local media did a 2 min broadcast of the case, during which no mention of the company, what his occupation was, nor what his spent convictions were.The employee was suspended the next working day after his crown court appearance. The company provided a “private report” from a person who attended court on their behalf, detailing wrong spent convictions and charges which have been proven as wrong by police disclosure. The company refuse to name the writer of the report, despite the employee asking to question the writer about the inaccuracies. The company stated “the company would prefer to rely on the written report”. The employer sought spent conviction information from the employee, the employees solicitor and enquired about “other avenues” to gain this. The employee refused stating that he did not have to disclose his previous convictions he had as a minor and had not been in trouble for 10 – 11 years, he has never served a custodial sentence. It mentioned Spent Convictions in the “charge” letter, asked for them in the disciplinary meeting, quoting “I am entitled to ask for this” and In the dismissal letter it stated that they didn’t rely on spent convictions although they are disappointed that as their livelihood depended upon it the employee did not provide spent conviction information nor the prosecution evidence against him. The employee instead of his spent convictions provided a letter from his solicitors confirming the actual charges etc. The employer did not take this into account in the proceedings. The employee enquired with the employer who they were asking for information, such as third parties. The employer replied that they wouldn’t do that. The employer then produced letters from them to the insurance company asking for the prosecution evidence “as they have had trouble obtaining this from the employees representatives” – this has been lodged with the ICO. The employee raised this as a grievance and the employer has not responded. The employee has emails that state, ;just a week after they were suspended the employer asking ways to terminate the employees employment;It suggests going to a third party to have a look at his criminal record without the employees knowledge ;They also have emails after receipt of the solicitor letter from the employee stating “it appears the employee is telling the truth” and asking what else can they do to terminate their employment. From the company solicitor that it wouldn’t be safe to dismiss the employee. Summary(1);From suspension to dismissal it took two months, despite the evidence they provided in support of the dismissal they had in the first week; (2To disclose convictions, pending convictions etc is not contractual nor contained within the company handbook;(3);The role is not exempt from the ROA;(4)The employee was allowed to continue working after the employer knew of the charges and that the employee had pleaded guilty. (5)The employee’s job involves looking after considerable high value vehicles but he was allowed to continue doing this after the employee told the employer he has pleaded guilty;(6)The investigation was unreasonable, the investigating officer was changed e.g the person was a note taker in the “charge letter” but in subsequent correspondence was “investigating officer”, the then “investigating officer” had made enquires to terminate the employees employment a week into the investigation. The evidence contradicted itself, witnesses were not spoken, use of anonymous witness which evidence contained incorrect information and the employer refused to answer questions about this. The employees evidence e.g solicitors letters or their witnesses was never used to weigh up the dismissal decision, the dismissal letter said only the employers evidence was considered. (7)In the typed minutes the employer provided to the employee there were 65 omissions relating to the employees explanation including sections which said “the employee put forward questions regarding the evidence and explanations” instead of what was said. (8);In the dismissal letter the employer relied on “customers and employees” maybe not wanting to work with the employee, but this was not mentioned in the “charge” letter nor the disciplinary hearing, where the employee QuestionsA long complicated case but I need to see the wood for the trees in the below questions from a new pair of eyes;The only cases I can find regarding spent convictions and the post not exempt from the ROA are Property Guards Ltd v Taylor and anor 1982 IRLR 175, EAT and Hendry and anor v Scottish Liberal Club 1977 IRLR 5, ET. Question 1In Hendry the actual reason for the dismissal does not have to be the spent conviction but spent conviction to have played a material part in it. The fact the employer sought by third parties spent conviction information, asked several times in the disciplinary hearing for them, used spent convictions in the “charge” letter and mentioned them in the “dismissal letter” would this suggest playing a material part?Question 2They were convicted for Fraud by False Representation but the employee was allowed to remain working and signing significant amounts of invoices off, access to significant sums of petty cash, after the employer knew they had pleaded guilty to this. Does this suggest the employer accepted his conviction for fraud by allowing him to continue fully in his role and stating they would support him. It was only upon discovery of spent convictions mentioned in court that the employee was suspended and spent conviction information was asked for etc. Question 3Was the investigatory process a sham by the use of anonymous witness etc and not taking into consideration the solicitor’s letter account, the change investigating officer, not interviewing witnesses, not interviewing the employee before the disciplinary hearing. Asking for ways to terminate the employees employment a week into the two month investigation process etc?------------ Any input would be greatly appreciated

Hi Ellen Just a question, when I receive the SAR information back from Acenden I presume I will receive a copy of my original mortgage contract as this was something that Acendens Representative was quoting today and couldn't provide, the judge was not happy about this. Can i also ask for a copy of their arrears procedures etc ?? Or is this pushing it too far?

Hi I have my own thread and lurk on this thread to build my knowledge up, I have just been awarded a suspended repossession but again challenged the arrears amount as it had both contractual payments missed and charges ! on Wednesday Evening i received the following from TLT solictors acting on behalf of Acenden and it makes me think that they are slightly worried about my investigation into charges ?? Up to this point they have, in writing, declined any offer of a proposal until then ? ? I have put a complaint in on a number of things, mainly them encouraging me to borrow more money when I can't afford it to pay off the arrears, the solictor assured me in writing iif I phoned them it would be recorded, I did phone them (i know stupid) and he made comments regarding my relationship status and encourged me to borrow more money i have asked that they investigate. The lack of response of any emails/letters I have sent them offering payment proposals, the lack of information they provide and the charges which have been added to my account. Could anyone give me their thoughts, this is there exact email:- I know you have been corresponding with ***** about the Southern Pacific Court proceedings. Can you correspond with me from now on please? I now have the file. As you will know, there is a Court hearing this Friday morning (18th). The Court has sent me a copy of your Defence which includes details of your financial situation and I have received an update from Acenden regarding payments that you have made towards your account. Acenden have told me to confirm to you that a payment arrangement whereby you pay your usual monthly instalments plus £60 each month towards your arrears is acceptable, so I am hoping that we can deal with Friday's hearing by agreement. If so, you may or may not want to attend the hearing. We will ask the Judge to endorse the payment arrangement in the Order. I know that you have raised issues about the administration charges that have been added to your account. Can I say two things about that. Firstly, no charges are added if you keep to an agreed payment arrangement, so hopefully there will be no further charges added. Secondly, the charges that Acenden has added to your account are charges that the mortgage agreement allows the Company to levy. They were set out in literature that you were given when you obtained your mortgage. All mortgage companies add charges when a borrower misses payments because that is the fair way to cover the extra cost of dealing with accounts were payments are not coming in as they should be. As for the level of the charges, recent publicity about unfair bank charges has encouraged some borrowers to argue about fees added to their mortgage account, but to date no-one has successfully challenged the level of Acenden's charges. I am telling you this because you need to remember that legal fees that run up because of arguments about charges are added to the mortgage account, so the mortgage debt increases. Of course it is entirely up to you whether you continue to object to the charges, and if so I would certainly encourage you to get proper legal advice from a solicitor. Can you please confirm to me: (a) that the payment arrangement is agreed so that the Judge can endorse it within the Order, and (b) if you are going to continue your objection to the charges. You can either email me or call me on 0117 9177615 / 078269 28069. Regards, Any insight will be grateful.... just awaiting my SARS request so I can start having a good look at what charges have been applied to my account

A quick update Just back from court! The judge granted a suspended order and agreed to include that the payment will be received on the 28th of every month (much to Acendens Representative disaapointment) and whilst this order is in place and being maintained that no further charges should be added to the account. Their legal representative was adamant that my outstanding balance was 30,000!! more than it was and I challenged this and she had to admit that she had got it wrong. I did put forward to the judge that arrears amount contained charges and I have asked for a breakdown but they have yet to provide this "stating that they are waiting for information". The judge said that he understood and asked Acendens representative for a balance for contractual arrears vs charges and she said she didn't know either. He went onto say that I could postpone the hearing but he would recommend putting the order forward and then I should clarify this directly with Acenden the financial services and its only a small cost if you want to go through court again But he has no problem adorning it today. I said I would prefer to put the order forward as I more than happy with that and it will stop any further charges being accrued and that I wanted to obtain all the information I can before challenging the charges. So a successful day! The judge was very nice. The representative for Acenden was well .... a prat. When we got outside the representative for Acenden said to me in the waiting room in front of people and also the security "I don't think that by challenging the charges you will be financially better off" my reply was "that maybe so, i am entitled to a full breakdown of what, why and how and your legal fees also, as I for all intents and purposes am i paying your wages! and I will know exactly how they have added excessive charges and I intend to make life difficult for them as they have me." I felt so proud of myself, and the security guard smiled at me Thank for everyones help.... next job to look at these charges so hopefully I will keep this updated.

Good Morning, Following on from the above I submitted my defense for the court hearing which is scheduled for Friday. Last night I received the following from Acendens solicitors, i will be attending the hearing on Friday, as the arrears amount is not TRUE arrears it includes charges they have applied to the account. I have brought this to the attention of Ascenden in the form of a complaint on the 18th February although they now saying that wont be able to respond until the 20th April ? I have also asked for a complete breakdown of how they came to the arrears figure, and as of yet they have not provided myself or the court with this, just the payment schedule since November 2010 showing what the payment should of been. I am not disputing that I am in arrears but I am unsure of the amount and before the court agrees I would like to be very clear about this, also with the view of claiming back some of the charges applied to the account eg 115. Would any of you be kind enough to look at the solicitors response below and let me know what you think ? It seems to be that they are a little desperate but I don't know why, the judge hopefully will endorse my proposal on Friday, especially when I take along the below, but why do they want to know if I am going to persue the charges ? Any advice would be very very welcome : Dear *** I know you have been corresponding with *** about the Southern Pacific Court proceedings. Can you correspond with me from now on please? I now have the file. As you will know, there is a Court hearing this Friday morning. The Court has sent me a copy of your Defence which includes details of your financial situation and I have received an update from Acenden regarding payments that you have made towards your account. Acenden have told me to confirm to you that a payment arrangement whereby you pay your usual monthly instalments plus £60 each month towards your arrears is acceptable, so I am hoping that we can deal with Friday's hearing by agreement. If so, you may or may not want to attend the hearing. We will ask the Judge to endorse the payment arrangement in the Order. I know that you have raised issues about the administration charges that have been added to your account. Can I say two things about that. Firstly, no charges are added if you keep to an agreed payment arrangement, so hopefully there will be no further charges added. Secondly, the charges that Acenden has added to your account are charges that the mortgage agreement allows the Company to levy. They were set out in literature that you were given when you obtained your mortgage. All mortgage companies add charges when a borrower misses payments because that is the fair way to cover the extra cost of dealing with accounts were payments are not coming in as they should be. As for the level of the charges, recent publicity about unfair bank charges has encouraged some borrowers to argue about fees added to their mortgage account, but to date no-one has successfully challenged the level of Acenden's charges. I am telling you this because you need to remember that legal fees that run up because of arguments about charges are added to the mortgage account, so the mortgage debt increases. Of course it is entirely up to you whether you continue to object to the charges, and if so I would certainly encourage you to get proper legal advice from a solicitor. Can you please confirm to me: (a) that the payment arrangement is agreed so that the Judge can endorse it within the Order, and (b) if you are going to continue your objection to the charges. You can either email me or call me on:- Regards, Many Many Thanks in advance

Hi Ellen Thank you very much for that. No I didn't use the budget sheet, just one i'd made up, but after seeing your advice i'll transfer the figures into that spreadsheet. I'll trawl through the threads looking for it. I'll send the letter recorded delivery today, shall I send to both ascenden and smpl? The statement you ask for in the letter, I am guessing that they will charge me for this ? Would it also be worth sending off the SAR to get a better picture or do you think i'll be rocking the boat on that one ? Your advice is most appreciated.

Thanks ever so much Ell-enn, I tend just to say things as I go along and no structure to them. Yes there are no problems with the emails or the letter from my employer.

Hi Ellen I have sent an email to both SPML and Ascenden yesterday, I am dealing with Zoe at Asecenden and told them that I am not happy that they are encouraging me to borrow more money, I have outlined my proposal of contractual payment plus 60 per month and confirmed I will pay this on the 28th of each month. I would like a more official/better worded letter to back this up though if you think it would help. I have also telephoned SPML last night and asked for an official breakdown of what they state the arrears are, for example what are arrears and what are fees ? I again told them my proposals they have said they will confirm this in writing to me and that they also reject this offer and are going for a full repossession order. If I don't receive it by the end of the week I will email them again. The arrears haven't been one solid block but erratic when I've had to sort benefits out, when I was off sick with stress/depression from the relationship breakdown, or previously when my ex partner was sorting it all out. Hence I'm not too sure what the actual arrears are. I also informed them that my ex partner had left the property. Can I show the judge that while I got my finances in order I tried to email and ask for arrangements to be made and have emailed numerous times and got limited response or no response, I have the emails and acknowledgement or no replies John Bentham / Scott Taylor – SPML on the 25th August, 1st September, 13th September 17th September 21st September 16th December Glenister Solictors 16th December 7th January 2011 10th January 2011 TLT Solictors – Zoe Hedger 17th January 2011 21st January 2011 26th January 2011 7th February 2011 I'm not trying to dwell on the past as its what got me in this situation but I have tried to tell them of my circumstances and asked for other possible routes as interest only while I was sick , sorting benefits and to add my arrears/fees to the account and they haven't replied. I can get a letter from my employer stating my earnings and that it is full time permanent ongoing employment with no possibility of redundancy if this will help prove a secure income rather than just a wage slip ? With regards to the forms, I'll have a look tonight, the only part at a quick glance, is i'm reluctant to tick I agree with the arrears amount, because I don't, for starters it includes the fees and I want to know exactly where the arrears have come from. If I tick no will this look bad ? I won't fill the forms in online, my court is only round the corner and I can pop them in no problems. I really need all the help i can get, I want to keep the house as I don't want my family any more disrupted than it has been. Best Regards Lubee7274

Hi 7/8 months maybe to be honest I really don't know. I don't really know the state before he left, I just know I am now able to afford everything. I have done my income and expenditure on the excel budget sheet , i had to sort where my money was going and what I had coming and to sort my benefits out. I have included everything and I have 80 per month left over. I even have different bank accounts set up now for different bills. If I offer them 80 per month and the libor goes up i'll won't be able to meet the payments and contribution towards the arrears as I currently stand. What would I do in them circumstances, hence I was only going to say 60 per month and put the 20 aside incase this does happen. Ascenden have said that they are not accepting a payment plan, they will oppose this and they want the property. I may have a payrise coming in the next couple of month but this is far from certain and I only want to work on solid facts and what I can currently afford. Yes I have received the defense forms and I am able to complete these online, should I do this or submit paper copies. I do want to bring to the attention that the figure they state is arrears AND fees if I could do that then thats wonderful. My children are 8 and 6, were we live is close to the school, my childminders and family as I work full time and often am away on business I need this support to be able to continue to work. The property is in joint names, but my ex partner does not contribute and I can't find him to contribute for the children never mind any debt he has left too. I can afford to do this on my own now i just want the Judge to see this. If you would help me with Q27 this is the question is how I came to be in these circumstances and how I can get myself out? Any help or advice would be wonderful again.

I am wondering if you could advise me I have received a court hearing date for repossession of my house, the hearing is set for the 18 March. The background the last year I haven't really taken responsibility for my debts etc as my relationship broke down and I was left on my own with two children. To be honest I can't remember much of the year due to medication etc. No excuse I know I have finally pulled myself around and am able mentally and financially get myself out of this mess and start afresh. I haven't replied to any court papers or lodged a defense yet as I wanted to be fully aware of what I was putting down. To start with they have stated to the court I am in arrears of £3023.93, after reading this forum I realised that their "fees" were included in this figure. Therefore can I state on the form that I don't agree with this figure. My contractual monthly payment has wavered between 345 and currently is 275 per month. I have asked ascenden what the breakdown is and they state that my arrears are 2293 and my fees are 700. To be honest this doesn't add up either as with that figure I wouldn't have paid my mortgage for 2 1/2 - 3 years and i'm sure they would have had me in court before now when i have only had the mortgage ? They also charge 85 per when in arrears and 115 per month when in ligation so the fees should be more than this ? I have put together a budget which accounts from school dinners, down to mot and road tax for the car and it is all detailed very clearly. With the breakdown I can afford my contractual payment of 275 and i have spare capacity of 80 per month. I don't want to offer 80 per month in case the libor changes and I need to be able to accommodate this. I have spoken to them and they are insistent that I borrow money from family and friend to pay a lump sum or they will order repossession? I have offered them the contractual payment and 60 per month which would clear the arrears if they are what they say they are over 3 1/2 years but they have refused. Even so I will pay this on the 28th of the month and i have made this clear as it will help with my budgeting. Hope above is clear? I intend to go to court and propose this to the Judge, as I have had 3 estate agent valuations and even if I put it on the market there would be shortfall. I haven't totally buried my head in the sand i have emails to prove that since November I have tried to contact them at least seven times by email to capalise the arrears, come to some arrangements but emails went unanswered or passed around, no straight reply. I will bring this to the judge as they have stated I haven't been in touch. I do have questions, (1) ascenden have said I have to clear the fees in addition to the arrears, are the fees paid out of the 60 or added to the term of the mortgage? (2) Can I dispute the amount they have submitted to the court, as it includes fees and not just contractual arrears ? They are not very clear on how and what is what ? (3) If i request a SAR, i won't receive the information before the 18th court hearing, could I later on contest the fees/contractual arrears? (4) I can demonstrate I am now in a good position to support myself and two children, clear my arrears in reasonable time can asceden refuse this and say they want the house? Any replies would be appreciated.