Disciplinary Procedures

[vvanishv02]

Thanks for taking the time to read my thread, much appreciated.

 

I am currently researching disciplinary procedures over the internet because I have been suspended over gross misconduct (theft) and I wanted some advice.

 

I know what I have done is wrong, but I have looked on the ACAS website and called helplines and they are telling me that the company has not followed the procedure properly.

 

I was called into a room for questioning, without a witness and without a recording taking place. The interviewer concluded that disciplinary action has to be taken forward.

 

However the people I have contacted have told me that I should have had someone with me in the room at the time. But according to my own companies policies, that stage was considered "informal" but in the eyes of those who I spoke to said that it is formal because they are making a complaint against me.

 

I also have filed a grievence to the company prior to this and have been told that the company must resolve this before disciplinary. My friend said that legally, they has to veto this problem because they havent followed the law.

 

Also I paid back the money, before the outcome has be determined and my friend said that should not have happened.

 

I know its a lot but I really need help. I really want to keep my job and I have shown remorse to my employer but they are still adament.

 

I work in retail. Thank you.

[honeybee13]

Hello and welcome to CAG.

 

Weekends are normally quieter here, but I hope the forum regulars will be along later with advice for you.

 

I think you might need to tell us a bit more about what has happened please, without giving us any personal information.

 

I'm not sure about what you say about having someone with you, but the guys will confirm. I thought you had to have someone with you for a disciplinary meeting but not for an investigatory one. Have the company folowed their own procedures?

 

My best, HB

[vvanishv02]

Thanks Honeybee

 

I did not have anyone in the investigatory one, however a colleague of mine did have a witness during his investigatory meeting. I also did not receive a copy of the investigation meeting's findings, and the colleague did get a copy. So I feel that they are following internal procedure for one colleague but not for me. The time difference between his investigation meeting and my meeting was only one week, but how can the procedure change so much?

 

I stole £200 in giftcards at my workplace. They found out via their internal monitoring systems and asked me to come into the office for the initial meeting. The man had prewritten questions on the desk and asked me them in order. He showed his proof in regards to the fraudulent purchases I had made and I did accept that they were fraudulent. In the end, he made me an offer to return the product or to pay for the difference, and I paid the amount that was stolen. (the product was worth £400 but only £200 was from the giftcards, the others was from my own money). I signed the initial meetings document, but I think he didnt mention the fact I paid for it as soon as the meeting was finished in the documents.

 

Now, I have asked a colleague (seperate to the one mentioned before) and she said that when she had her disciplinary, she had a witness and another person in the room in the investigation meeting (4 people: the manager, the colleague, the colleagues witness and another who wrote down all the questions and notes for the investigation meeting)

 

So I feel like they have taken different measures for me and for others.

 

Thanks.

[Sidewinder]

Hi there and welcome.

 

I fear that you are unlikely to be able to pursue this on matters of procedure alone, and I also think that you may be disappointed with my response. At this stage it would appear that you have been called to an investigatory hearing, at which you have no right to be accompanied, and the employer has suspended you on the basis that the preliminary investigation has found sufficient grounds to proceed to a disciplinary hearing, at which you should be offered the right to be accompanied.

 

Even so, whilst there is an ACAS code of practice which an employer should follow, this has not been mandatory since 2009, and a failure to follow the Code is no longer sufficient to render sanctions unfair for that reason alone. As I am sure that you appreciate, any case of theft will almost always be treated as Gross Misconduct, and the sanction for this is in the vast majority of cases, dismissal. For that dismissal to be fair in law, the employer needs to have a 'reasonable belief' that you committed the act, and that their decision was based on a 'reasonable investigation' and that dismissal was an appropriate action to take for the act which you are accused of.

 

Therefore, providing that the employer is reasonably sure that you have committed the theft (and since you state that you have repaid money, that does not seem in doubt), and that their belief is formed after a reasonable investigation (so once again an admission of guilt would be sufficient for this), then the likely outcome will be dismissal, since theft is an act which goes to the heart of the trust required between employer and employee and to break that trust would render the relationship sufficiently damaged to make it appropriate for you to leave. In law, and in those circumstances, any failure to follow the ACAS code would be completely irrelevant, since that failure would only be taken into account if the dismissal itself were held to be unfair.

 

Your only grounds to challenge this, if dismissal were to follow the impending disciplinary hearing, would be on the grounds that the employer's belief of guilt was incorrect based on a flawed investigation - so, if you had not done this, and the employer's investigation was unreasonably inadequate to give them that belief, then you might be able to look at an unfair dismissal. If you were caught red handed however, or have admitted guilt, then you are a long way from being able to complain that your treatment has been 'unfair' in law.

 

To be honest, remorse and any mitigation you might be able to offer could go some way in perhaps persuading them to give you another chance, but on the face of it I do not think that this will have a happy outcome.

 

EDIT - In the light of your post above, you may have some merit in arguing that you have been treated differently to others, especially if others guilty of the same offence are of a different sex, race or religion, for example as that MIGHT be a possible case that you have been discriminated against. Did others steal goods of equal value? Were you any sort of 'ringleader' in this? How long have you worded there? Were you in any position of authority?

[vvanishv02]

Thanks for the help.

 

I wanted to know one important thing.

 

If I were to complete my disciplinary hearing and they concluded that theft is apparent, would I be given a criminal record, or be taken to court, or even prison?

 

I also understand that gross misconduct is the worst way to go, but I have told my manager I would be willing to return whereby I would be revoked of my till functions and just do stock handling. And my manager is in a important time period where he cant really afford to lose 3 people over this situation. ( one colleague of mine was in on this, and another colleague as mention before is planning to leave). I just want to get back to work to be honest.

 

Thanks.

[Sidewinder]

I understand your concerns, and I can see no harm in being completely remorseful and offering to carry out whatever work the employer might consider you suitable for in return for not dismissing you. You are, unfortunately completely at their mercy on that, but as stated previously, disciplinary sanctions would have to be fairly and equally applied for events which others were involved with which were the same as yours. Whilst this MIGHT work in your favour, the employer should also be mindful that in allowing you to stay this could set an unwelcome precedent should any employee also be guilty of the same offence in future.

 

Potentially, the employer is at liberty to pursue a criminal prosecution, or even a civil action to recover any losses (including time spent directly in the investigation of your acts), but I would say that this is unlikely. Employee theft is normally referred to the police at an early stage due to the need for evidence to be preserved, and even in the event of a prosecution prison would be unlikely in the case of an isolated incident, for a relatively small amount, and without a previous history of theft. You would almost certainly be warned early on that the matter is being referred to the police.

[vvanishv02]

Sidewinder,

 

Are you saying that the chances of a criminal record is low? And if they wanted they would have done it at the very beginning?

 

Also speaking about precedent, another manager told me that a disciplinary action was disregarded because the company didnt follow their interal procedures. I don't know if that would help, but that person got sent to a final warning stage. Not sure. I'm trying to contact people in my company to see what they say the internal procedure is, because the company has to follow it. Not sure.

 

Thanks.

[becky2585]

Vanish, if your employer decides to prosecute, you could still be charged with theft. You returned the products though, so hopefully they won't involve the police. I would expect the two most likely points for police involvement to be 1) upon discovering the theft, or 2) upon finding you guilty of theft and dismissing you for gross misconduct.

 

SW has given you some excellent and very thorough advice here. I would strongly suggest that you stop focussing on what you think might be wrong with the procedure, and start showing remorse. Apologise, grovel, and hope they don't dismiss you. But if they do, it would more than likely be fair given the circumstances.

[Sidewinder]

In my experience, police involvement is usually at an early stage, with the employer gathering evidence and the employee then being arrested and escorted from the premises. Whilst it is possible to be prosecuted later on, many employers also like to keep things 'in-house' and avoid publicity etc.

 

Where strict procedures are laid down by contract, and failure to abide by those terms could be considered a breach of contract, so, depending on precise circumstances, the employee could hold the employer to the terms of the contract.

[vvanishv02]

EDIT - In the light of your post above, you may have some merit in arguing that you have been treated differently to others, especially if others guilty of the same offence are of a different sex, race or religion, for example as that MIGHT be a possible case that you have been discriminated against. Did others steal goods of equal value? Were you any sort of 'ringleader' in this? How long have you worded there? Were you in any position of authority?

 

I had been given extended till functions that are usually only given to managers and trustworthy employees. I have been working there for 2 years. I feel that should be a good thing, that Ive only been there 2 years and I have management functions, no? Others who have worked there for over 8 to 15 years didnt even have these powers on the tills. From when I'd started as a temp till now, my managers have told me I've shown tremendous progress, very quickly and that I should be given a promotion, but the rules in the stores and the economic environment is such that we are unable to have more than 2 team leaders in the store.

 

I was the person who started this problem and got another colleague involved. We are on disciplinary on the same problem, but he has not admitted to anything. The other person has issued a gift card worth £50 and gave it to me. I had issued £200, £150 I kept, £50 I gave to him. Also the interviewer was very aggressive towards my colleague into forcing him to give a confession, whereas I just told him straight up that I did do it. I may not be highly trustworthy but at least I was honest.

 

Thanks

[assisted blonde]

I think that you are looking for mitigating circumstances I cant see any at all. Theft is wrong you committed the crime and as far as I can see westher procedure was followed or not your employer can no longer trust you in any capacity. you will not get a criminal record unless prosecuted and as your employer hasnt yet involved the police this is in my opinion unlikely. Apologise and hope that the reference you get is just a basic one I can see no real option but for you to be dismissed

[vvanishv02]

Thanks.

 

Would it be possible for me to just resign? I've been told by my manager to resign, but everyone I'm asking is saying that I shouldnt considering the disciplinary action allows me to put my case to keep my job. If I did resign, would I need to attent the hearing?

 

Also, does my grievence against the company have any factor to play in the evidence?

[honeybee13]

Hello.

 

I think you need to be cautious about resigning while under investigation, because this can appear on your reference later. I'm sure the guys will comment more about this.

 

HB

[monkeychicken]

i find you comment that at least you were honest as being somewhat funny given the circumstances

[Suzc123]

I would stop thinking about how other people have been treated through the investigation etc as there is case law that demonstrates that people can be treated differently if there is a reasonable explanation for doing so. I dont see any way around this other than to be honest, apologetic and try for a very basic reference. However you have stolen, you have by the sound of things encouraged others to do the same and you need to take the consequences and move on. Resigning wont help because your reference could say that you resigned whilst under investigation for theft.

[stu007]

Hi

 

One thing you need to bear in mind is at the investigation stage their is no legal requirement for you to have a witness/be accompanied, now the but unless the companies Policy states that you can then you can but only if the companies policy dictates this.

 

I would air caution on thinking of resigning while under investigation as this can follow you and any reference you get from that employer can state 'That you Resigned while Under Investigation', thats all they need to put and any new employer would probably question this with your former employer.

 

At the Disciplinary you have the Right to be accompanied by either a Work Colleague or Union Representative.

Edited January 12, 2013 by stu007

[transient]

In my experience, police involvement is usually at an early stage, with the employer gathering evidence and the employee then being arrested and escorted from the premises. Whilst it is possible to be prosecuted later on, many employers also like to keep things 'in-house' and avoid publicity etc.

 

Where strict procedures are laid down by contract, and failure to abide by those terms could be considered a breach of contract, so, depending on precise circumstances, the employee could hold the employer to the terms of the contract.

In my experience as a ex serving officer it is normally the latter when we were called in as I am sure old bill can testify too. They will normally give us a ring within a couple of weeks of it occuring to report it, we will attend at some point after it has been allocated and then we will make our way round to the suspects house at some point or call them to attend by appointment.....this is dependant on the seriousness and value as to whether they get a early wakeup call or or a call to come in on their own volition.

[Sidewinder]

In my experience as a ex serving officer it is normally the latter when we were called in as I am sure old bill can testify too. They will normally give us a ring within a couple of weeks of it occuring to report it, we will attend at some point after it has been allocated and then we will make our way round to the suspects house at some point or call them to attend by appointment.....this is dependant on the seriousness and value as to whether they get a early wakeup call or or a call to come in on their own volition.

 

Thanks for that - understandably your experience is far greater than mine. Although I have seen criminal prosecution for as small an amount stolen as £15, equally I have known retailers let several hundred pounds worth go with just a dismissal. In those cases where the police were involved it was pretty immediate, although nowadays I suppose it would be unlikely to occur before the dismissal occurred otherwise there would be the risk of having to keep an employee on paid suspension pending the outcome of the prosecution, especially if the issue of guilt were in doubt.

[vvanishv02]

Thanks.

 

I wanted to know if the police would pursue me if I were to resign? Can they still come for me after my resignation even though I have paid back the money that was stolen? Or is that up to the discretion of the manager?

 

Also, if I were to go to my disciplinary, would they then call the police? It seems like either way they would call the police.

[transient]

Yes they can pursue you if you resign, that has no bearing on the matter, you have committed a criminal offence. The police can pursue you at any time for this, there is no restriction on when they can come or when it can be reported.

 

It is immaterial whether you have paid back the money or not, an offence has been committed. Paying the money back is a mitigating factor and only that. If the police are called in and you are charged, which you would be based on what you have said the risk of prison is very very slim. Granted I dont know your history but if first offence I would hazard a caution due to your value and age (by your posts I assume you are very young???) or if it goes to court then I would expect this to be heard at the mags as not so serious. Make no mistake though theft or dishonesty from employer is a serious breach of trust and is viewed seriously by the courts.

 

As to whether this is reported or not, this is down to the companies policies and procedures, some companies take a hard and fast approach and have no tolerance and report all instances, some play it by ear and make a judgement call. You will need to have a think about any other instances that may have occured to other employees that have done the same thing and that might give you an idea of whether they will report it or not, or refer to your companies handbook.

[vvanishv02]

I'm 24 and it's my first ever problem I've done in the work place, and I've never had anything related to the police as of yet.

 

My company handbook doesn't mention police involvement but like everyone has said here, its a judgement call. In the handbook it says they would consider past experience, but even then it's a long shot.

 

My question is, do I go ahead with the disciplinary and get potentially dismissed and escorted off the premises by the police with a bad reference? Or do I just resign with a bad reference with the nervousness of the police possibly coming?

[transient]

I'm 24 and it's my first ever problem I've done in the work place, and I've never had anything related to the police as of yet.

 

My company handbook doesn't mention police involvement but like everyone has said here, its a judgement call. In the handbook it says they would consider past experience, but even then it's a long shot.

 

My question is, do I go ahead with the disciplinary and get potentially dismissed and escorted off the premises by the police with a bad reference? Or do I just resign with a bad reference with the nervousness of the police possibly coming?

I think you are confusing the disciplinary process here. The police will not be at the disciplinary meeting, that is nothing to do with them and a totally different process and besides they dont have time to be turning up at every disciplinary in the country.

 

I personally think you should go to the disciplinary and see it through. By not going any reference will probably state that you resigned before a disciplinary process was completed so you have nothing to lose by going and seeing it through. I would look back at what others have said and plead and apologise.

 

It is likely you will be dismissed for this but at least you can ask when you have finished if the police will be involved to allay any nerves

[vvanishv02]

I understand that, thanks.

 

However for the procedure to be completed they said that they have to send the letter to my home. So I'll still be nervous, but in the end I could ask about the police thing in the meeting. It says that the manager has the decision, maybe pleading to him could work but he is a person that follows the rules perfectly. On the other hand, he was a bit sad when he found out it was 2 people and he's gonna be in a massive pickle due to every other member of staff not being trained enough to me and this other guy.

 

Lastly, if the police do come, would that be on my record for when I apply for jobs?

[transient]

I understand that, thanks.

 

However for the procedure to be completed they said that they have to send the letter to my home. So I'll still be nervous, but in the end I could ask about the police thing in the meeting. It says that the manager has the decision, maybe pleading to him could work but he is a person that follows the rules perfectly. On the other hand, he was a bit sad when he found out it was 2 people and he's gonna be in a massive pickle due to every other member of staff not being trained enough to me and this other guy.

 

Lastly, if the police do come, would that be on my record for when I apply for jobs?

Yes that is correct you will get the decision in the post, normally by recorded delivery. I think you do need to plead here. from the sound of it, seems it is out of character. Have you had any issues at work? Any recent health issues?

 

When you say 2 people was someone else involved? I dont recall you mentioning this if so.

 

If you are arrested and charged/cautioned this will appear on any CRB checks made by a prospective employer. If you are investigated but not charged/cautioned this will possibly show on a enhanced CRB and above

[Emmzzi]

Any normal employer will not keep you in employment when you have stolen from them just because they are a bit busy.

 

Work on heart felt apologies and go through the whole process.