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If a salaried member of staff goes home early is it fraud because he doesn't actually submit a false record of his/her hours? I am assisting a friend but the employer is using 'data' covered under the DPA to proceed with a disciplinary under the guise that a crime has been commited ie fraud, is this correct?

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Well, they have arguabley stolen time... Me I'd stick to it being simple misconduct.

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Well, they have arguabley stolen time... Me I'd stick to it being simple misconduct.

 

Unless they are Doctor Who can they actually steal time? I agree its misconduct but fraud as far as I understand is making a false statement to gain financial advantage, theft act does not cover stealing anything other than property, how can you steal time which staute would this be covered by?

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To play devils advocate what does the contract say? Are the hours specified?

 

I can't see it being fraud unless anything was falsified .

Any opinion I give is from personal experience .

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Does the person have to clock in and out? If they or someone on their behalf can hide the actual time of leaving then that would be easier to construe as fraud. And if they are paid hourly

as opposed to weekly or monthly.

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Their contract is 40 hours (shifts) with various start end times, they are accused of going home 30 minutes early when a manager had also gone home early but he is not being disciplined. The evidence is building electronic access data and Council cctv footage, they are employed by LA. They are arguing the data is covered by the DPA but the line manager states as its fraud the 'crime prevention' exclusion can be used. They do not clock in or out as they are on a salary paid monthly and hours are supposed to be monitored by management. The line manager had told them they could go home when they had finished their work hence the early departure but this conversation is now being denied.

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Suggesting that an employee leaving early is fraud seems very odd to me. There are various types of civil fraud under common law and criminal fraud under the Fraud Act 2006, but they generally all require some sort of gain and they all require dishonesty. It is difficult to see how this could be fraud. I suspect the manager did not mean he thinks there was "fraud" in a technical legal sense and has not fully thought it through.

 

I may be missing something, but I cannot see why the DPA prevents the local authority from looking at its own building access data and CCTV footage. Why do you think using this data to check when an employee left the building is a breach of the DPA? My instinct is to think that starting an argument about the DPA is not likely to lead anywhere and that the employee would be better off simply owning up and explaining that its common practice. If it is just a matter of leaving 30minutes early when there was no work to do, it does not sound like it should be a serious issue.

 

Please clarify one point. It sounds odd that the council has gone to the trouble of checking CCTV footage and access data. Unless they do this kind of thing regularly I imagine trawling through CCTV footage was a time-consuming exercise. Did they check by themselves to prepare for the disciplinary, or did they only check because your friend denied leaving early?

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Sounds like some one is being too jobsworthy.

 

Perhaps there has been a lot of employees leaving earlier and they are going to make an example of this particular person.

 

I cant see how this is fraud, even if they were deceitful with their clocking times, unless this has happened on a regular basis and they have been watched.

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It's not fraudulent in criminal terms, but it is in terms of timekeeping and its certainly a breach of trust. If it happened just the once then it's misconduct. Repeated instances could potentially be gross misconduct.

 

Why did they leave early? I am salaried and regularly work past my contracted hours, but I couldn't just waltz off the premises early if I felt like it...

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Although if you were a contractor getting paid hourly for example, then incorrectly claiming for hours you didnt work could be considered fraud I would of thought, although I doubt whether this would apply to leaving 5-10 mins early.

 

Andy

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I am not an expert but have some experience of this. I am familiar with central Government policies and processes. LA are virtually the same. There are two distinct processes. One is a criminal investigation covered by the Police and Criminal Evidence Act (PCEA) and the other is misconduct under the LA policy and processes. To acquire material by the DPA utilising the PCEA the criteria they must satisfy that the enquiries they make are reasonable and proportionate in relation to the crime investigated. There is an Inspectorate body that inspect agencies entitled to use the clause which exempts them from the DPA in relation to criminal enquiries so they must keep a paper trail to justify that there was reasonable ground to suspect a criminal offence and that the enquiries made were reasonable and proportionate to the crime being investigated. In my view this would be laughable solely in relation to going home 30 minutes early. There are safeguards built into PACE to protect an individual's rights. If you are accusing someone of being suspected of fraud, theft etc then they are entitled a) to be advised of their rights under the law b) their right to have a solicitor. It doesn't seem this has happened at the time it is advised to your friend that going home half an hour early could be a fraud.

 

An enquiry could start off as a criminal enquiry and change to a misconduct charge but again the LA should have to be able to justify why they did this. Under DPA and the Freedom of Information Act (FOI) you can ask to see this paperwork involved including managers memo's etc. They cannot do this simply to use all the powers of criminal law whilst denying the individual of all the protection and safeguards afforded to them

 

For misconduct the process starts with charges be laid against the individual for misconduct to advise them of an enquiry taking place for whatever and it should refer to if the charge is misconduct or gross misconduct. The enquiry should be carried out in line with the laid down policy and procedure. Misconduct enquiries do not qualify for exemption under the DPA. Your rights are protected. You say that the LA is not going down the misconduct route but they haven't adhered to due process under criminal law in my view.

 

I am not sure if their own building access and cctv is covered by the DPA. I guess it would depend on whether is was agreed with the union that this was a management staff control system as well as a security system and I suspect that is unlikely. There are some people who think just because you provide information into the office for one purpose they can do what they like with it. They can't. They can only use it for the purpose given and would require specific authority from you to utilise it in another way. You can check this out with the Information Commissioners office about the allowed useage of the building access data and cctv in relation to DPA and misconduct enquiries.

 

At the moment I can't see that the LA is following any process at all. If someone accuses you of something I think you have the right to a fair and balanced hearing. It is amazing how many managers get amnesia when it comes to justifying their decision. As you hours are 40 a week find any other day where your friend left half an hour late, worked through lunchtime It doesn't even have to be in the same week where no overtime was claimed for. Also I would look for a colleague owho has been told on a previous occasion by a) the manager in question and b) any other manager to go home 30 mins early. Show it as normal practice. Was there particular circumstances that day ie bad weather, transport delays etc that would make it likely. I wouldn't bank on the manager not coming up with an excuse as to why they went home early so cctv footage of them going early won't actually help you unless it happens with them on a regular basis.

 

If your friend is a member of the Union rep but if I had not been charged either with misconduct or criminal (that really is a joke for 30 minutes) I would stick in a grievance. This is unacceptable, disproportionate behaviour from your management whose actions do not follow laid down policy and procedure (should be available in your office internal internet) that have deprived you of your rights and safeguards not only under the policy and procedure but also the law (your manager mentioned fraud).

 

There is nothing more likely to make someone ill than to be wrongly accused of something and unable to be heard by allowing them to put their own case forward. I think the threat of fraud was done because the manager may have realised they overstepped the mark and is trying to bully and intimidate your friend in order to justify their own actions. There is usually a time limit to put in grievances after the event usually about three months.

 

Get them to get a copy of the LA internal policy on misconduct, check the situation with the Informations commissioners office regarding CCTV/data access to the building with the Information Commissioners and then get them to speak to their Union rep. If they are not in a Union I guess they could speak to Citizens Advice or a community or on line solicitor where you don't have to pay. They should also do a note of events upto now and date and time that when they actually write the note. From now if anyone speaks to your friend on this matter get them to make a note of it in their diary, date and time the note to show it was written at the time. I would also always send an email along the lines of what I'm being told ie further to our conversation this morning I understand that you are saying blah blah blah. That gives the manager the opportunity to put it right but there is a paper trail in case there are any more bouts of managerial amnesia. Print off anything that supports their version of events and keep it. If policies or email have a security caveat make sure the document printed off is kept in the prescribed manner. ie in an sealed envelope or a double sealed envelope etc.

 

If the manager is using scare tactics and hasn't actually done anything except to justify their own action your friend might not not want to to escalate the situation only they can make the decision. Whatever your friend needs to think carefully about their next move because there is a problem here. Maybe the manager doesn't like them, why would you go to the trouble of getting some cctv for half an hour when they could have pulled your friend up without it and spoken to them about their hours and reminded them of their commitment and clarified any misunderstandings there might be around that.

 

There's no evidence here of any intent to deceive and the standard of proof for a criminal matter lis high and in a matter like this with a very very low chance of a success. You just wouldn't get a prosecutor to consider taking this to court. . Most people who pop off early intend to make it up by taking a shorter lunch break or something the next available opportunity or have worked 10 /15 or 20 mins over on previous occasions so consider it quid pro quo even when not strictly doing flexitime. If the employer did take action it would be probably internal in relation to breech of contract for their conditioned hours. Again being able to show occasions when your friend has worked over even just 5/10 mins would knock this on the head along with your friends understand that their manager had the authority to let them go early. Clearly this is not the case and I doubt any manager would be able to show what was in someone's mind when the went home. They would have great difficulty to do that it's much more likely to be seen as a breech of contract if they were to go that far but if they did I suspect there would be no staff left in the LA!

 

Whilst unpleasant I don't think your friend has much to worry about except maybe having fallen foul of some less than effective and perhaps even spineless management. The question is how they deal with this. Maybe ask HR for a move to a different area. They are actually in a much much stronger position than it might feel to them right now in regards to what has happened.

 

Hope this helps

Good luck

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Hi

Forgot to say the reason I would collect everything and make the enquiries is to keep all my options open and to protect myself. Whilst I would probably put in a grievance in these circumstance, in doing so, you change from being the victim to the aggressor so it is a decision only the person that this is happening to can make for themselves. Also colleagues may not want to get involved and don't always back up what they know to be the truth.

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IMO go to the disiplinary explain the circumstances and see what happens, no its not fraud but starting grievences etc is only going to make a mountain out of a molehill, if going 30 mins early is the only problem and it is a one off. I have previouly worked in local LAs and you have got to be really bad before they get rid of you.

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Suggesting that an employee leaving early is fraud seems very odd to me. There are various types of civil fraud under common law and criminal fraud under the Fraud Act 2006, but they generally all require some sort of gain and they all require dishonesty. It is difficult to see how this could be fraud. I suspect the manager did not mean he thinks there was "fraud" in a technical legal sense and has not fully thought it through.

 

I may be missing something, but I cannot see why the DPA prevents the local authority from looking at its own building access data and CCTV footage. Why do you think using this data to check when an employee left the building is a breach of the DPA? My instinct is to think that starting an argument about the DPA is not likely to lead anywhere and that the employee would be better off simply owning up and explaining that its common practice. If it is just a matter of leaving 30minutes early when there was no work to do, it does not sound like it should be a serious issue.

 

Please clarify one point. It sounds odd that the council has gone to the trouble of checking CCTV footage and access data. Unless they do this kind of thing regularly I imagine trawling through CCTV footage was a time-consuming exercise. Did they check by themselves to prepare for the disciplinary, or did they only check because your friend denied leaving early?

 

An allegation was made by a 3rd party and the line manager reviewed the cctv footage to assertain the time of departure. The system is registered with the ICO for crime prevention not snooping on staff and access is stricly limited under the DPA if you think any line manager can just wander down to the control room and start trawling through cctv footage you obviously have no understanding of the DPA.

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Hi

 

I have to agree with green_and_mean they cant just go to a cctv control room and view the footage as certain legal processes have to take place and those viewing that footage have to have certain qualifcations as well and all requests to view any footage have to be logged.

 

So my question is where is their copy of the log showing that this line manager requested this footage and for what purpose?

 

Have a look at this link may be of help in understanding the CCTV:

http://www.cctv-information.co.uk/i/Data_Protection_Act_Compliant_Control_Room_Documentation

 

This PDF may also be of interest:

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Dont know much about the use of cctv but I thought the problem was did he go home early and is it allowed? Not sure that it warrents getting bogged down in CCTV laws at the moment, why not go to the meeting, see what is said and only bring up the use of cctv if really necesary

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Their contract is 40 hours (shifts) with various start end times, they are accused of going home 30 minutes early when a manager had also gone home early but he is not being disciplined. The evidence is building electronic access data and Council cctv footage, they are employed by LA. They are arguing the data is covered by the DPA but the line manager states as its fraud the 'crime prevention' exclusion can be used. They do not clock in or out as they are on a salary paid monthly and hours are supposed to be monitored by management. The line manager had told them they could go home when they had finished their work hence the early departure but this conversation is now being denied.

 

 

The top and bottom of it all is that if the company does not keep records of all their employees ` start & finish `times then they are wasting their time.

 

You should argue `swings and roundabouts` and let them prove otherwise....good luck!

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You are entitled to have someone with you for a disciplinary meeting either a Union rep or 'a friend'. Usually a colleague. If you are the friend accompanying them then make sure you take notes of what is said during the meeting. I agree with Madari, your friend should argue swings and roundabouts but stick to what happened with the manager actually said it was okay. If there was a misunderstanding that's all it was. I can't understand why your manager would even go this far to a disciplinary. I would also mention this appears to be taking a sledgehammer to crack a nut and extremely heavy handed. If they think leaving 30 mins early is inappropriate, then a memo to all staff instead of singling your friend out would be more in line with the right thing to do and consideration of paying overtime when they leave 30 minutes late!

 

You didn't answer an earlier question by someone as to did your friend lie about going early when challenged. If they did just say they had felt intimidated but didn't feel they had done anything wrong, swings and roundabouts again.!

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