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Sidewinder

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Posts posted by Sidewinder

  1. The employer cannot legally withhold any holiday pay that accrues up to the date of termination. Any exception might be where there is a contractual obligation to repay training or other agreed costs

     

    In certain circumstances, where the correct notice is not worked, the employer 'can' sue for out of pocket expenses directly incurred as a result of that breach - for example having to engage somebody to cover work that your leaving without the correct notice led to it needing to be completed. That is rare however and would be more relevant to certain occupations  

  2. Late to the party and all that, but be aware that trackers don't just record geographical position. They also include accelerometers and all sorts of data which when analysed will assess braking frequency and severity, yaw and pitch, together with speed and compliance to limits. The pressure to complete jobs whilst it might be a reason, is not justification for poor driving or breaking the law. Recognising that your driving style and lack of awareness of speed limits, together with a firm commitment to undertake driving assessment, more regular scrutiny and proving in the next few weeks will be the way to minimise any possible sanction

     

    I work in an environment where such issues are the norm as a responsible employer. Making excuses rarely endears the employee to the boss. An absolute willingness to change may appeal to a certain sense of fairness depending on the history

  3. https://www.bbc.co.uk/news/uk-england-london-50390425

     

    Not attempting to tar all security guards with the same brush, but a prime example of (possibly) vulnerable young people being scared of threats that security guards MIGHT make to frighten those people into doing whatever they think it takes to avoid further trouble when caught shoplifting

     

    Where possible,  if accused of shoplifting, people should insist on any discussions being held under camera, and with more than one person present. If offered to avoid escalation by giving favours to a guard/manager, then insist on police presence. Guards have the power to issue a ban from the store, or call the police, nothing more 

  4. How long have you worked there? Any previous allegations or disciplinaries against you? 

     

    In the first instance you have the right of appeal, which you must use, but also continue with the GDPR request as suggested above

     

    Your problem - and it is a tricky one - is that the employer only needs to have a 'reasonable' belief of guilt, formed after a 'reasonable' investigation and taking into account the resources available. That is quite some hurdle for you to overcome, but the key word here is 'reasonable'. If they have assessed your guilt on the basis of CCTV NOT clearly showing whether your description of what happened on the day is borne out by the footage then a decision to dismiss MIGHT be considered unreasonable and they should also have considered evidence which might prove innocence as well as looking at possible guilt

     

    I could understand agreeing a mutual departure as trust is totally spoilt between both me and the company

     

    I find this statement quite troublesome. If you are genuinely innocent then that is what should be asserted, not looking to reach an agreement over termination. Similarly the 'destroyed my career over something that isn't proven' part. If you have gone about any hearing on such an ambiguous basis then this would not have helped your case - you are adamant that you have not done what you are accused of and vigorously defend yourself, rather than talk about the allegation not being proven surely?

     

    Length of service is relevant as if you were to have an appeal rejected and wanted to take this further, then you must have at least two years service

  5. The above advice is sound. One chance to resolve and a reasonable deadline for doing so, then follow through with the threat. MoneyClaim for breach of contract and a demand to be paid what is due. You can claim for reasonable costs for time, copying, stamps etc and also add the fee for lodging the claim to the amounts owed plus interest.

     

    Make sure that the claim is served to the Defendant at the correct address and in the correct name. Unfortunately making the claim and getting a Judgment doesn't necessarily just result in the money being paid. You may need to pay more for enforcement, and if the claim is made against an insolvent company you may never see a penny. That isn't to say that you shouldn't proceed with the claim, just that it may be necessary to take professional advice should any next steps be required

  6. Gross Misconduct isn't strictly defined - it is an issue which is considered so severe that it destroys the mutual trust and confidence of the employee/employer relationship. There are obvious examples such as violence, theft, drugs etc, but there are also other examples which may or may not be considered serious enough to dismiss. If the employee were to take the case to a Tribunal the only issues to consider are whether the dismissal was 'reasonable' in the circumstances (any reasonable employer would have reached the same outcome) and whether the decision was made after a 'reasonable' investigation considering the size and resources of the employer. For any dismissal, either for capability or conduct, a 'fair' procedure must be followed. Even in a clear-cut case of gross misconduct, this is nothing like you would see on TV with an employee being bawled out and told they are fired. For suspected GM, even though it might be appropriate to suspend the employee (on full pay), this should be for evidence gathering purposes where necessary and the employee should be given written confirmation of the suspension and the reason for it. They should then be given a written invitation to attend a disciplinary hearing and that dismissal may be an outcome to that meeting, and they should be given the opportunity to have a colleague, Trade Union Representative or Trade Union Official accompany them to the disciplinary and to help present their case, take notes or to confer during the hearing. If representation cannot be arranged or if there are other reasonable barriers to the meeting being held then an alternative mutually acceptable date should be agreed. Following the hearing and when a decision is made the employee should be informed of the outcome in writing and given the right to appeal

     

    Same procedure applies in conduct issues short of GM, but a fair warning procedure should be used. No suspension required, but written details of the complaint, an invitation to a disciplinary hearing with warning over possible outcomes, right to be accompanied and a right to appeal any final decision. If the complaint leading to the hearing is upheld, then a warning, and notification of how long this would remain on file (no longer than is 'reasonable' - the employee must not have it hanging over them forever), and that any subsequent breach might result in further action up to and including dismissal

     

    For matters of capability, then possible reasons for the underperformance should be discussed at a less formal investigatory hearing so that the employer can explore ways in which to overcome any obstacles - proper or additional training, are there health or personal issues affecting performance? Is there anything the employer can do to help? There may be a disability (not necessarily physical or obvious) where the employer once aware, should make any reasonable adjustments necessary to allow the employee to work within the limits of that disability - what is 'reasonable' will vary for both parties but you should be mindful that any dismissal as a result of the disability will likely be unlawful unless any such adjustments have been considered. This may be to allow extra time to complete tasks, allowing more latitude for absence, where the absence is caused by the disability, changing workstation, or improving access to a workplace for the employee. If however there are no such issues affecting performance then the employer should set reasonable targets and timescales for improvement and dates set for progress reviews. If underperformance continues then there can be a move to a warning process whereby dismissal could result if sufficient progress is not made. Again, keep everything confirmed in writing and allow the legal rights for accompaniment and appeal

     

    These procedures apply to all employees and must be applied fairly and evenhandedly - irrespective of gender, race, religion etc. Dismissal following a fair procedure will not be a problem irrespective of race, religion, disability. Your suggestion that you have to treat one employee differently due to a protected characteristic is not true, providing that you have used a fair procedure and have made allowances for any protected characteristic. It is a myth that you cannot dismiss for long term sickness, or cannot dismiss a disabled employee, but you must follow fair procedures. These rights apply to all employees irrespective of service, but should the employee have less than two years service, you have a certain protection against a claim for Unfair Dismissal unless the dismissal was due to a protected characteristic

     

    Not at all sure that I would agree with the way that you worded your OP?

     

    "I'm trying not to personalize this too much, so would appreciate any advice in a general sense. Is there legislation that states there must be, for example, a verbal warning first, followed by 2 written warnings, then 'boom!' sack time. Or can a boss just fire you because she doesn't like your face - (providing of course that 'face' doesn't look pregnant, black, gay, transgender, etc, or any other protected characteristic - just a regular 'unprotected' straight white middle-aged male!)"

     

    As said previously, policies and disciplinary procedures must be evenly applied. You 'could' dismiss because you don't like the employee's face/tie/aftershave, but it wouldn't be lawful unless that employee was actually doing anything wrong (although if employed for less than two years they could do little to take the case to a Tribunal unless they allege that the dismissal was for a protected characteristic), so you should look at attitude, workplace harmony, negative impression of customers etc rather than personality itself and use a warning process

     

    Of course any employer, of any size should have adequate disciplinary rules in place and available to staff otherwise it becomes very difficult to allege that rules or expectations have been breached when staff are unaware of what the rules are or what could result from breaking them, so if you do not have these in place then you could find things very difficult - dismissal for punching a colleague will almost certainly be reasonable in most circumstances, but for lesser misdemeanours, employees must know what is acceptable and not have to guess and be ambushed at a disciplinary. You must also apply the same disciplinary sanctions to all employees - allowing one to remain with a warning but dismissing another for the same offence could easily be construed as unfair. Hopefully you do have such procedures published and employees are aware of them?

     

    I have probably missed something out of the above, or have applied the procedures incorrectly - Emmzi or Sangie are much better qualified than I - but hopefully the above helps. The ACAS Code is not law as such, but is used as a measure by Tribunals and failure to apply the Code could, in the event of a successful claim, be used to increase any awards made. Equally, following the Code and being able to demonstrate fair process and reasonable sanctions made will protect you from false or spurious claims

     

     

     

     

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  7. On 16/05/2019 at 13:32, SPARKIE1976 said:

    Do Sainsbury’s have a picture board for staff to see all the shoplifters faces? Like a rogue gallery I’ve always wondered?

     

    The retailer I do work for used to have a rogues gallery in a number of stores - polaroid type snaps not lifted from CCTV in many cases but with those detailed asked to look at the camera and watch the birdie (many I recall were smiling or posing for the camera). There were literally hundreds of photos on some of the walls with a summary of what they were suspected of taking written underneath. All disappeared a few years ago though and have never been seen since. 

  8. As DX says try not to worry - even IF the police were contacted by Asda they would most likely not follow it up. The most likely reason for the guard taking the numberplate details would be to enter it on some sort of store reporting system. Details of incidents are logged purely for internal use and they might just cross check to make sure that other stores haven't reported the same type of incident with your car being used - it also helps the guarding contractor (stores mainly use outside security companies nowadays) to justify their existence in terms of actually stopping a theft. As an isolated incident however I very much doubt that you will hear any more about this, but (and I know you probably won't) don't be tempted to try this again as it could have ended up being worse than it has

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  9. Whilst it may be true that any person can arrest and detain a suspected offender - that person using 'reasonable force' would be extremely unwise unless they have absolute certainty that a relevant offence has been committed. In the circumstances outlined in Post #2, it would be extremely foolish to detain somebody revisiting a store where an offence was merely suspected of taking place at some previous time, and no proof existed that it actually had 

  10. Different outfit, but the same fleecing method as got my father. He had hired a car in Rome and unknowingly racked up half a dozen or so infringements of a controlled traffic zone during his stay. It took almost four years for the fleecers - a UK based DCA - to write threatening hell and damnation unless he paid them well over £1600.

     

    In father's case he paid up believing the threats to be legitimate, before owning up to me, and with very little research we discovered that he is not alone and many have been subjected to the same threats. With further research it also became clear that the DCA has absolutely no purpose other than to threaten (and rake off a tidy share of anything recovered) and only IF the local authority in Italy sought to take action they would only have jurisdiction in Italy and providing that you have no intention to return (and even then there would only be a small chance of finding trouble) then there is nothing that they can do.

     

    Father later had another letter demanding further payment for another infringement not previously included and rightly that time completely ignored them. He has not heard from them since!

     

    As a subnote, the legal system in Italy allows 360 days after establishing the identity of the driver (or hirer) in which to contact you. You should therefore have had a charge to your credit card (presumably) from the hire company, and then a notification and demand for payment from the Italian authorities - which in my father's case was by email and looked like a foreign s*c*a*m so it was deleted and only three years later did he get a letter from the UK DCA

  11. You appear to be suggesting that a ban would be preferable to you than Points?

     

    I think it highly unlikely that with a clean licence, and your occupation you would be looking at a ban - certainly with remorse expressed, previously clean licence and needing to be able to drive for work. The amount of the fine could be high as it is based on income at that level, but I can't understand why you would want a ban rather than the likely 6 points?

     

    The offence code (so far as I am aware) would be SP50 irrespective of whether that results in a ban or not. If action was taken through the Mags Court then this would be classed as a criminal conviction but surely your professional body would not view that in the same way as, say, a criminal conviction for violence, and maybe even disclosure would not be required for straightforward motoring offences? Yes you would need to disclose the offence to your insurer or any future potential insurers, but as an SP50 whether a ban or fine resulted - this would only be different if a ban was ordered under totting up

     

    Others may well be much more clued up on this subject, but I don't see it being any more complicated than in needs to be - other than the likely fine where a professional would have a sufficiently high income for it to be quite punitive

     

    As above, admit the offence, show remorse and disappointment in yourself for your actions, offer to take whatever the court awards and plea for consideration to be given to a previously good driving history and the need for you to drive in your employment

  12. If it is a disciplinary hearing then you have a right to be accompanied by a Union rep or work colleague. Have you been advised of this? How long have you had to prepare for the meeting?

     

    What would be the case if your Union Rep or colleague was not available on that day. A 'reasonable' employer should postpone the meeting to allow you to have everything in place. Of course it may depend what your 'plans' are - a medical appointment might be one thing but it it is just meeting up with friends of going shopping then it may be that attending a meeting to decide your future employment might reasonably be seen as more of a priority

  13. As above - completely ignore CRS - they will make all kinds of threats but it is extremely unlikely that it will go any further than threats. It is not a criminal matter at all, so they would have to sue in the civil court which would cost far more than they could hope to recover - and even if it did go that far they would need to prove that you deliberately intended to steal rather than this being a genuine mistake. Of course the CR order relies on an admission of guilt in order to be issued, but as above this remains a civil matter and will not involve the police any further

     

    The CR order remains a private agreement between you and B&Q - the police have no powers to enforce it. The CR is not a criminal conviction so would not go on a criminal record although it might be stored as 'local information'.

  14. A couple of things

     

    Has he been with the same employer for those 20 years?

     

    Has your husband contracted out of the Working Time Regulations? If he hasn't then he cannot be forced to work an average of more than 48 hours per week.If he has opted out in the past, then he can opt back in by giving the relevant written notice. Also, he should be having the rest breaks allowed by law and uninterrupted periods of at least 11 hours between shifts - is he getting adequate rest?

     

    Regarding the working conditions this sounds like more of a H&S issue. I am not familiar with the catering industry but would suspect that many kitchens are similarly uncomfortable to work in. I probably already know the answer, but is there a H&S rep at the workplace? There should be a risk assessment relating to extraction systems and a schedule of work completed to clean them and keep them effective. It would be interesting to see whether this is the case. Would fellow workers back your husband up in raising a complaint?

     

    Ultimately it may be that your husband has to raise concerns directly with the employer in a formal manner by raising a grievance. This is not likely to make him popular and unfortunately may mark him out as a troublemaker so he will need to watch his back, but once genuine grievances have been raised, especially in connection with H&S or potential breaches of WT regs, then they should take this seriously and respond appropriately

  15. Agree with the above - Superdrug are basically saying that as you were all together they are not trusting any of you to not be the next ones to try stealing so will not be prepapred to have you on the premises in future - just in case

     

    RLP are well known for sending their spurious bill for security costs to each of those who were detained so that hopefully one of you cracks and pays - effectively on behalf of all of you. You can confidently ignore anything that might be sent to you - and tell your friends to do the same, as RLP are not entitled to anything, and all they will do is send letters. They will send increasingly threatening demands though, hence why it would be better if parents were aware of the situation in case a letter gets opened or seen by them in error. If they have any intention to speak to RLP or worse still, pay them, then send them here to ask questions and we will happily put their minds at rest. Ignoring RLP is essential and nothing bad will happen if you do

  16. I deal with security guards and others on an almost daily basis and they all use the word 'fine'

     

    It isn't however, but is merely an offer to pay an amount in settlement of the retailer's option to sue you in the County Court for what they deem to be a contribution to the costs of security. They will rarely, if ever, take that option as it has been proven in the past to not represent any genuine loss to the store, so you can safely ignore any demand for payment - and there will be several such demands, using increasingly alarming language, and maybe ultimately a letter from a debt collector, however since no debt actually exists they are even more toothless than RLP. Stand firm, do not pay a penny and ignore all letters and you will be fine

  17. The Working Time Directive is clear that holiday pay should be paid at the time that an employee takes holiday. Rolled up holiday pay is considered unlawful under the WTD however the UK implementation of the Directive was not (nor is) quite so specific. Although the Government guidance is that holiday pay is unlawful, and that holiday pay should be paid based on hours worked at the time of taking leave, any employer still using the practice of rolled up holiday pay will have a defence to any claim for non-payment of holiday pay so long as the 'rolled up' element of pay is clearly separated and documented as such on the payslip. There is also a recommendation that any contracts still in place where rolled up holiday pay is used should be renegotiated

     

    So the shortened version of the above is that yes, it is unlawful, but in terms of what can happen as a result is very little so long as the contract and payslips make it transparent that there is one rate of pay for the job (which cannot be below NLW/NMW) and a separate pay element representing the rolled up holiday pay. The employee must also be free to book (and should be made to take) the statutory minimum annual leave entitlement. The contract does though need to be renegotiated so that leave is paid at the time it is taken

     

    EDIT - crossed posts with Sangie - sorry

  18. No - definitely not a conviction or a caution. A CR is an opportunity for first time low level offences to be dealt with outside of the court process and to avoid staining an otherwise clean record with a criminal record for something trivial and (hopefully) unlikely to happen again. Should there be further events, then the CR can be taken into account as 'history' of committing offences, but as per my previous, you can genuinely and honestly say that you have no convictions or cautions, as you don't. All that there may be is a record held locally that you were investigated for a matter of shoplifting and that this was dealt with by CR, not a criminal marker on the PNC

  19. As above - NEVER pay RLP a penny. They are not entitled to it and there is no lawful reason why they should receive it. They will write and tell you that 'their client' reserves the right to take legal action, but that will never ever happen as the matter was dealt with at the time, the goods were recovered and Primark suffered no loss. RLP will claim that 'their client' is entitled to a contribution towards security costs - there are no costs applicable over and above what they would have paid the security guard(s) on that day had you not even entered the store, so again they have suffered no recoverable loss - and this was proven the last time that RLP encouraged a client to try to recover such amounts in court - over 6 years ago and they lost so heavily that none of their clients have gone near court since, so forget all about that.

     

    RLP may well even copy and paste bits of this thread into any letters to you and tell you that we know nothing and give bad advice. Simply read other threads here and try to find one where court action has resulted from such poor advice...you won't find anything either here or elsewhere

     

    The potentially sticky point for you 'might' be the involvement of the police and for your career and voluntary activities requiring enhanced DBS checks. A Community Resolution requires an admission of guilt, and will have been recorded on local police records but not the Police National Computer. As such it 'may' be disclosed in a DBS check but only if it is considered relevant to the position requiring the DBS check, even though you can honestly state that you have no criminal convictions or cautions if asked that question. This is a possibility, although unlikely but it is best to know, so you may want to get a SAR from the police which should give you an idea of what, if anything has been recorded on the police information system

     

    Please try not to let this get you down even further, and hopefully you are getting help to deal with the root causes of this issue. Health and family are what matters most at the moment

  20. I had a speed awareness course once - I didn't see a sign and hadn't noticed there was a drop in the speed limit from 60mph to 40mph. I couldn't protest because it was my responsibility to be aware of the notified limit and drive within it. Whilst on the course we were all asked 'why' we were speeding and one lady was in almost exactly the same situation as you. She said that she thought the camera wasn't working so the person running the course asked whether, when she went into shops she checked where the cameras were so that she could steal from the store. Naturally she was incredulous at this suggestion until it was pointed out that she had been doing almost the same as this when driving - checking where it was safe to break the law and where it was not

     

    I think that there are very few options in your situation other than to get a very good solicitor who can mitigate on your behalf and to minimise any punishment

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