Employment Tribunal - Not innocent until proven guilty

[Lizzie123]

Please can somebody advise me?

 

Friend is going to an employment tribunal mostly to recover unpaid wages - employer obviously wants to make him look as bad as possible so he can avoid paying up and has a rather nasty solicitor working for him.

 

Former employer is alleging that friend is guilty of theft - not from former employer but from a third party ( a customer of the employer). As far as we know the customer has NOT said anything has been stolen. So friend in a letter to the tribunal requested that the employer should be required to have confirmation from the customer that these thefts actually happened if they were to be included in the tribunal. It was a long letter and this was only a small part of it.

 

Solicitor wrote back a very nasty e mail (not copied to the tribunal obviously) and said

"An employer does not have to prove by evidence that a theft has taken place, but that he reasonably believed that it had and that the employee had participated."

 

I understand that the employer does not need to have the same level of proof as a criminal court but does he not even need to prove that anything was actually stolen? It seems to me that he might as well say that because my friend went to the train station that he stole a train - no he didn't, it wouldn't fit in his pocket!

 

I realise that if the theft had been from the employer that things might be different as he would know for certain that something had gone missing but as the employer does not have any control over the customer or his activities this seems grossly unfair.

 

 

Any help or comments would be gratefully received.

 

 

Lizzy

Edited May 5, 2013 by honeybee13

[Emmzzi]

How did your friend leave the employer? Were they dismissed for GMC following theft. or something else?

[Lizzie123]

He was dismissed for something unrelated and appealed. The appeal went his way but when his employer reinstated him they refused to pay his unpaid wages and changed the terms of his contract so he resigned. He went to the tribunal to get his money back.

The theft allegation was first mentioned after friend had submitted his list of documents to the employer's solicitor as per the instructions given by the tribunal.

 

Lizzy

[Emmzzi]

If there was no thetft dismissal then the solicitor isn't as sharp as they think they are - it's unrelated to the wages claim and very likely to be dismissed on that basis. Just scare tactics.

[Lizzie123]

Thanks for that.

What the solicitor is saying is that had the employer known about the alleged thefts that he would have been dismissed anyway.

 

To the best of my knowledge my friend did not commit theft.

 

Although his claim to the tribunal was primarily to get his wages back he, on the advice of the CAB, did mention that it was constructive dismissal. This was because of the unpaid wages and the changes to his contract.

 

If the judge allows them to bring in the alleged thefts will the employer be required to have confirmation that they actually happened?

 

Lizzy

[Emmzzi]

Had the employer known of the allged thefts they would have had to conduct a full investigation and have a hearing where your friend had the opportunity to bring witness/ union rep.

 

Didn't happen = blowing smoke.

[Lizzie123]

Sorry to be such a pain but obviously this is a huge worry for us.

All the information that the Employer is relying on was available at the time of the suspension at the start of November but not mentioned until the middle of March.

If the judge allows the allegations to be included (very persuasive solicitor v non-represented friend) will he require confirmation from the "owner of the goods" that they have been stolen? Or is the level of proof at a tribunal so low that he will just accept the employer's word?

 

Thanks

 

Lizzy

[becky2585]

The burden of proof is "on the balance of probabilities", ie 51% or higher. If he's claiming constructive dismissal then the theft allegations will most likely be permitted as an argument - it's a defence in that a) if it was found to be a constructive dismissal, it will be fair because he contributed to it by his behaviour, or b) he would have been sacked for gross misconduct in any event once the theft was uncovered.

 

It won't affect the wages claim though, if they were backdated and there was no reason for them to be withheld.