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Every day I receive endless enquiries from debtors regarding the subject of Magistrate Court FINES and the matter of bailiff fees for enforcing the Distress Warrant.

 

This is a subject that seems to provoke a great deal of interest in particular given that there are a few websites available which “claim” that bailiffs charging such fees are committing “fraud”. Such sites routinely encourage visitors to go to the court and pay the fine only in cash into a machine in the foyer in the mistaken belief that the court will accept payment and cancel the Distress Warrant. WRONG.

 

The websites fail to tell the unsuspecting debtor that the courts forward the payment to the bailiff company and they will then write to the debtor to inform them that they are still liable for the bailiff fees.

 

Over the next few days I will be adding to this thread to provide as much information as possible on this subject.

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Judicial College (Previously called the Judicial Studies Board)

 

 

 

The Judicial Studies Board (JSB) is directly responsible for the development and training to Judges in the Crown, County, higher courts, magistrate courts and tribunals.

 

According to their Annual Report their purpose is to:

 

Ensure that high quality training is delivered to enable those who discharge judicial functions to carry out their duties effectively, in a way which preserves judicial independence and supports public confidence in the justice system.

 

The JSB is an independent judicial body and part of the Judicial Office for England and Wales. It is funded directly from the Ministry of Justice and the Lord Chief Justice exercises executive responsibility for oversight of the JSB.

 

On 1st April 2011 the JSB became the Judicial College.

 

In March 2010 the Judicial Studies Board introduced the Adult Court Bench Book for use in Magistrates Courts and particular attention should be given to the following section under the heading: Distress Warrant:

 

A Distress Warrant authorises the seizure of the defaulter’s goods so that they may be sold to settle monies due to the court.

 

 

Where the court has power to issue a warrant of distress, it may postpone the issue for such time and on such conditions as it thinks just.

 

 

If the warrant is executed but the defaulter has no goods or insufficient goods to satisfy the sum due, the court will need to consider enforcing in some other way.

 

 

Most bailiffs will only accept payment of the total outstanding for magistrates’ fines, therefore there is little scope for accepting reduced instalments. They can charge for a number of things including administration costs, handling fees and making visits to the defaulters property, all of which is deducted before the fine is paid.

 

 

Issuing a distress warrant is one of the option that must be considered before commitment to prison for non payment.

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Tomtubby when you say that people are advised to pay the Court fine in cash, do you mean that they just pay the fine or that they pay the total figure on the Distress warrant.

If the latter, I can understand that the bailiff company may wish to recover their fees but if the Warrant has been paid they surely lose their right to still be acting under the auspices of the Warrant?

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They can charge for a number of things including administration costs, handling fees and making visits to the defaulters property, all of which is deducted before the fine is paid.

 

Taking this to a conclusion it does tend to suggest the charges\fees can be applied to the debt and the debtor becomes responsible for them, otherwise if the bailiffs are to recover their costs of enforcement they would need to 'bill' HMCTS to their fees and I can't somehow see HMCTS agreeing to pay a bailiff £300+to collect a fine of say, £60!! unless of course they have agreed to work for nothing?

 

It certainly leaves food for thought when the site you refer to advocates a debtor merely pays the fine to the Court and ignores the charges/fees owed and claimed by the bailiff in respect to enforcing on behalf of HMCTS,

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Tomtubby when you say that people are advised to pay the Court fine in cash, do you mean that they just pay the fine or that they pay the total figure on the Distress warrant.

If the latter, I can understand that the bailiff company may wish to recover their fees but if the Warrant has been paid they surely lose their right to still be acting under the auspices of the Warrant?

 

 

Let me first stress that any advice given to debtors to pay the fine only to the court is not advice given by me. It is the advice given by another forum and frankly...it is incorrect advice.

 

On the Distress Warrant there should indeed be a "figure" which will be the amount in default to the court. However you need to be aware of the wording on the Distress Warrant which states as follows:

 

"You may take goods and money belonging to the defendant to the value of the money owed.......and the costs of carrying out this warrant"

Edited by tomtubby
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Again, there are silly claims being made on the internet that a bailiff cannot charge fees because "goods have not been removed"

 

As you will see from the wording on the Distress Warrant a bailiff can remove MONEY !!

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Let me firstly stress that any advice given to debtors to pay the fine only to the court is not advice given by me. It is the advice given by another forum and frankly...it is incorrect advice.

 

On the Distress Warrant there should indeed be a "figure" which will be the amount in default to the court. However you need to be aware of the wording on the Distress Warrant which states as follows:

 

"You may take goods and money belonging to the defendant to the value of the money owed.......and the costs of carrying out this warrant"

 

TT

 

I think the argument being made elsewhere is that if the Magistrates fine is settled in full, before the warrant is actually executed, then the bailiff fees are not due. The distress warrant is issued to cover the Magistrates fine and allow bailiffs a legal basis to enforce payment of the fine. If there is no actual execution using the distress warrant, then the bailiff is not due their fees. Execution means in law 'the carrying into effect of a court judgment'. The court judgement is that the defendent pays £x amount, so if this is settled before execution, then there is no legal basis for the bailiff to continue any further enforcement for their fees.

 

It depends on what the court does with the payment made. If someone wants to pay the court directly, they need to ask the court whether they are accepting the payment of the fine in full and will not be passing the money onto anyone else. Get confirmation of this from the court.

 

Why don't the courts issue the distress warrant showing the fine and bailiff fees due ? If the warrant contains all the information and this is given to the person owing the money, then there is no argument.

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The wording on the Distress Warrant is very similar indeed to the wording on a Warrant of Execution in relation to an unpaid parking charge notice which states as follows;

 

"You are instructed to seize in execution the goods, chattels and other property of the respondent authorised by law and to raise from the sums detailed above and your reasonable costs for executing this warrant listed in the Enforcement of Road Traffic Debts(Certificated Bailiffs) regulations 1993.

 

From information that I am hearing all courts receiving payment AFTER a Distress Warrant has been issued are merely forwarding the payment to their appointed Approved Enforcement Agent ( ie: Marston Group, Collectica Ltd, Excel Enforcement Ltd or Swift Credit Services Ltd)

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With this particular subject your really need to go "backwards" to understand how fees were charged when enforcing unpaid court FINES. Here goes....

 

During the late 1990's responsibility for warrant enforcement had been with the police and it was in 2001 that this role was formally transferred to the Magistrates Court. At this time Civilian Enforcement Officers and Approved Enforcement Officers were permitted to enforce warrants of arrest, commitment, detention and warrants of distress.

 

The core of the legislation being sections 92 and 93 of the Access to Justice Act 1999 (this particular section (93) also inserted section 125B into the Magistrates Courts Act 1980, and section 31A into the Justice of the Peace Act 1997)

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Magistrates Court Committees (MCCs)

 

 

For many years Magistrates Courts have been administered by Magistrates Court Committees (MCCs).

 

When the Labour Government came to power in 1997 they expressed a strong desire to improve the overall management of the criminal justice system and in doing so, reduced the number of MCCs from 105 to 42.

 

MCCs had enormous responsibility. They were solely responsible for the administration of all magistrates' courts in their area. They could hire and fire staff, control budgets and, in the case of unpaid court fines, each of the 42 Magistrate Court Committees had contracts with various bailiff companies (Approved Enforcement Officers) outlining the fees that the company could charge fine defaulters when enforcing Distress Warrants.

 

The MCCs were happy to use the services of bailiff companies as such firms provided a "free services" by charging debtors rather than the courts for the execution of distress warrants.

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Fees charged to fine defaulters before 2006

 

There is no statutory scale of fees applicable to the executuion of distress warrant in the Magistrates Court.

 

Instead, Rule 54 of the Magistrates Court Rules 1981 simply states that the bailif may retain the proper costs and charges of executing a warrant.

 

Guidance issued by the Lord Chancellors Department (LCD) to all magistrates' courts in 1997 stated that every MCC should "determine a scale of fees which it considers reasonable and not disproportionate to the amount due under any warrant".

 

Accordingly, each of the 42 Magistrates Courts Committees(MCCs) agreed contracts with their preferred private sector bailiff company (Approved Enforcement Agent) outlining the fees that could be charged when enforcing distress warrants.

 

 

The amounts charged varied considerably from one company to another and from one MCC to another. As an example; the Birmingham area MCC had a contract with their Approved Enforcement Agent which simply stated that the bailiff company:

 

"Shall charge fees as they deem appropriate but they should not exceed the levels as set by the Certificated Bailiff Association"

 

On average, the fees agreed by each MCC consisted of an "admin fee" of approx £30, an "attendance fee" of £70 and a separate "van attendance" fee which varied from £50 to as much as £120. Fees therefore varied between £150 to £220.

 

During this period, almost all private sector bailiff companies had contracts with one or more Magistrates Court Committees (MCCs) to enforce Distress Warrants. Full details can be read here:

 

 

http://www.theyworkforyou.com/wrans/?id=2004-04-26.166805.h

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There appears to be a grey area when money is paid into the Court, that should the bailiff continue to pursue the debt after that, perhaps because of a delay in notification from the Court,

that the bailiff can add those later fees. Is that correct or are any additional fees not permitted.

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As mentioned above it would make everything simpler if the fees are added to the fine when the distress

warrant is issued . I think the £300 fee is disproportionate though .My thinking is that Magistrates

have to entice the bailiff s with this enormous fee for them to carry out the work . A better example

would be a plumber who comes to your house to change a 20p tap washer charging you a call out fee to make it worth his while . Having said that the million dollar question is why the fees were not

legislated for ? Could it be that HMCTS do not want to appear heartless by heaping further financial stress on a debtor ?

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As mentioned above it would make everything simpler if the fees are added to the fine when the distress

warrant is issued . I think the £300 fee is disproportionate though .My thinking is that Magistrates

have to entice the bailiff s with this enormous fee for them to carry out the work . A better example

would be a plumber who comes to your house to change a 20p tap washer charging you a call out fee to make it worth his while . Having said that the million dollar question is why the fees were not

legislated for ? Could it be that HMCTS do not want to appear heartless by heaping further financial stress on a debtor ?

 

If TT is correct that most Magistrates are passing any money paid to them to the bailiffs, then the warrant would be kept alive, so the bailiffs have a basis to continue enforcement.

 

If people want to try to avoid the bailiff fees they should pay the cashier at the Magistrates the fine money and get a receipt that the fine has been paid. If the cashier does not notice that bailiffs have been instructed and accepts the money as payment for the fine, then we are into grey area territory. The fine having been paid and confirmation from a court official that it has been, means that the warrant is no longer valid. The warrant is issued to enforce the judgement of the court and once the judgement is met, there is no proper basis for the warrant to be used by a bailiff to purely collect their fees. I believe that neither the warrant or existing laws allow for a warrant to be used solely for collection of bailiff fees, as the amounts of fees is not shown on the warrant.

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If TT is correct that most Magistrates are passing any money paid to them to the bailiffs, then the warrant would be kept alive, so the bailiffs have a basis to continue enforcement.

 

If people want to try to avoid the bailiff fees they should pay the cashier at the Magistrates the fine money and get a receipt that the fine has been paid. If the cashier does not notice that bailiffs have been instructed and accepts the money as payment for the fine, then we are into grey area territory. The fine having been paid and confirmation from a court official that it has been, means that the warrant is no longer valid. The warrant is issued to enforce the judgement of the court and once the judgement is met, there is no proper basis for the warrant to be used by a bailiff to purely collect their fees. I believe that neither the warrant or existing laws allow for a warrant to be used solely for collection of bailiff fees, as the amounts of fees is not shown on the warrant.

Don't think that the warrant could include the fees as it would then be an extra fine not imposed by a court, perhaps even the fine could be suspect if the defendant's means have not been examined prior to sentence. It is indeed a grey area UB, we need clarification for once and for all.

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The bailiff: A 12th Century solution re-branded as Enforcement Agents for the 21st Century to seize and sell debtors goods as before Oh so Dickensian!

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In July 2001 the Lord Chancellors Department issued a GreenPaper entitled: Towards Effective Enforcement: A Single Piece of Bailiff Law and a Regulatory Structure for Enforcement. A copy can be read accessed here:

 

http://webarchive.nationalarchives.gov.uk/+/http://www.dca.gov.uk/enforcement/enfrev01.pdf

 

With regards to the subject a bailiffs enforcing distress warrants against fine defaulters and arrangements for fees to be charged the following paragraphs are most relevant:

 

 

Page 15: Para 1.48:

 

“From 1 April 2001, MCCs took over formal lead responsibility from the police for executing warrants issued against fine defaulters and those in breach of community sentences.

 

Under the new arrangements, it is for individual MCCs to determine how their warrants are executed. Some are employing their own civilian enforcement officers, others are contracting this work out to Approved Enforcement Agencies or back to the police, and some are using a combination of these methods”

 

 

Page 17: Para 2.10:

 

“MCCs can contract with Approved Enforcement Agencies to execute a range of warrants.

An enforcement agency wishing to gain approved status must meet the requirements of the Approval of Enforcement Agencies Regulations 2000 and must apply, separately, to each MCC with which it wishes to contract”

 

 

 

Page38: Para 5.13:

 

“Existing arrangements for enforcement agents distraining for magistrates’ court debts are not laid down in statute but should be fixed by a contract between the enforcement agent and the particular MCC”

 

 

Under Annexe B: A Summary of Professor Beatson’s Recommendations it states on the footnote on page 61 the following:

 

 

“Bailiffs distraining for Magistrates court debts are the notable exception; their fees are fixed by a Contract between the bailiffs and the particular court”

 

.

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What happened after 2006?

 

Following the introduction of the Courts Act 2003 the responsibility for the 42 existing Magistrates' Court Committees and the Court Service passed to Her Majesty's Courts Service. This took effect on 1st April 2005.

 

The Department for Constitutional Affairs (DCA) decided that for the future, enforcement services would be provided under contracts to be entered into, following a tender process, in respect of each of HMCS's seven regions.

 

The Contracts were able to be made pursuant to Section 2(4) of the Courts Act 2003 which enabled the Lord Chancellor to:

 

"...enter into such contracts with other persons for the provision, by them or their subcontractors, or officers, staff or services as appears to him appropriate for the purpose of discharging his general duty in relation to the courts"

 

With each of the 42 Magistrates Courts Committees previously agreeing different fees with their Approved Enforcement Agents, under the new tendering process, the Department for Constitutional Affairs wanted to ensure that all companies would charge the same fees to the debtor.

 

Following the bidding process, in November 2006 the DCA awarded contracts to enforce warrants (including distress warrants) on behalf of the Magistrates Courts to three Approved Enforcement Agents. These companies were: Drakes, Philips Collection Services and Swift Credit Services

 

In total, six contracts were awarded covering seven different regions and it was agreed that each company would “cap”the fees charged to the debtor at £200. This charge covered the administration stage and attendance to the debtor’s property. In the rare event that goods were actually removed, additional fees were permitted.

 

After the expiry on the initial contracts a further tendering process was undertaken by the Ministry of Justice on behalf of HMCS and this led to new contracts being awarded to 4 Approved Enforcement Agents. These were: Marston Group Ltd, Collectica Ltd, Excel Enforcement Ltd and Swift Credit Services Ltd. These new contracts took effect on 1st December 2009

 

Under the new contracts (which expire at the end of 2013) an increased fee scale was agreed with the Ministry of Justice which consisted of a maximum fee of £75 for the administration process and a maximum attendance fee of £200.

All four contracts were extended by 2 years and at this stage each company were permitted to increase the fee from £75 to £85 for the administration stage and from £200 to £215 for the "one off" attendance fee.

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The Criminal Procedure Rules 2012 state under paragraph 52.8 the following:

 

The person who executes a warrant must:

Explain, in terms the defendant can understand:

(1) the order or decision that the warrant was issued to enforce

(2) the sum for which the warrant was issued

(3) any extra sums payable in connection with the execution of the warrant

 

Particular note should be given to paragraph 52.8 (5) which states the following:

The warrant no longer has effect if:

(a) there is paid to the person executing it the sum for which it was issued and any extra sum payable in connection with its execution

(b) those sums are offered to, but refused by that person; or

© That person is shown a receipt given under rules 52.3 for which the warrant was issued and is paid any extra sum payable in connection with its execution.

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What happened after 2006?

 

Following the introduction of the Courts Act 2003 the responsibility for the 42 existing Magistrates' Court Committees and the Court Service passed to Her Majesty's Courts Service. This took effect on 1st April 2005.

 

The Department for Constitutional Affairs (DCA) decided that for the future, enforcement services would be provided under contracts to be entered into, following a tender process, in respect of each of HMCS's seven regions.

 

The Contracts were able to be made pursuant to Section 2(4) of the Courts Act 2003 which enabled the Lord Chancellor to:

 

"...enter into such contracts with other persons for the provision, by them or their subcontractors, or officers, staff or services as appears to him appropriate for the purpose of discharging his general duty in relation to the courts"

 

With each of the 42 Magistrates Courts Committees previously agreeing different fees with their Approved Enforcement Agents, under the new tendering process, the Department for Constitutional Affairs wanted to ensure that all companies would charge the same fees to the debtor.

 

Following the bidding process, in November 2006 the DCA awarded contracts to enforce warrants (including distress warrants) on behalf of the Magistrates Courts to three Approved Enforcement Agents. These companies were: Drakes, Philips Collection Services and Swift Credit Services

 

In total, six contracts were awarded covering seven different regions and it was agreed that each company would “cap”the fees charged to the debtor at £200. This charge covered the administration stage and attendance to the debtor’s property. In the rare event that goods were actually removed, additional fees were permitted.

 

After the expiry on the initial contracts a further tendering process was undertaken by the Ministry of Justice on behalf of HMCS and this led to new contracts being awarded to 4 Approved Enforcement Agents. These were: Marston Group Ltd, Collectica Ltd, Excel Enforcement Ltd and Swift Credit Services Ltd. These new contracts took effect on 1st December 2009

 

Under the new contracts (which expire at the end of 2013) an increased fee scale was agreed with the Ministry of Justice which consisted of a maximum fee of £75 for the administration process and a maximum attendance fee of £200.

 

All four contracts were extended by 2 years and at this stage each company were permitted to increase the fee from £75 to £85 for the administration stage and from £200 to £215 for the "one off" attendance fee.

 

IT is important to emphasis that the Contracts between the Ministry of Justice and the four Approved Enforcement Agents outline the procedures that must be undertaken by each company when enforcing court warrants on behalf of HMCTS.

 

With regards to the fees that each company may charge to debtors, the actual warrant itself permits fees to be charged by anyone executing a distress warrant ( as outlined in my above post) and it is merely a CONDITION of the contracts that each of the four companies will not EXCEED the fees agreed with the Ministry of Justice.

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IT is important to emphasis that the Contracts between the Ministry of Justice and the four Approved Enforcement Agents outline the procedures that must be undertaken by each company when enforcing court warrants on behalf of HMCTS.

 

With regards to the fees that each company may charge to debtors, the actual warrant itself permits fees to be charged by anyone executing a distress warrant ( as outlined in my above post) and it is merely a CONDITION of the contracts that each of the four companies will not EXCEED the fees agreed with the Ministry of Justice.

 

What is the definition of the word execution in the case of a distress warrant in regard to the following situations.

 

1) Where the fine is paid to the court directly before any visit from a bailiff takes place.

2) Where the fine is paid to the court directly after a first visit from a bailiff.

 

What I am getting at, is the question that is continually asked, what law exists that says a bailiff can use the distress warrant for the continued enforcement of their fees only, after a court has been paid a fine, which is not passed onto to a bailiff. I don't think the law is very clear in this area.

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As mentioned above it would make everything simpler if the fees are added to the fine when the distress

warrant is issued . I think the £300 fee is disproportionate though .My thinking is that Magistrates

have to entice the bailiff s with this enormous fee for them to carry out the work . A better example

would be a plumber who comes to your house to change a 20p tap washer charging you a call out fee to make it worth his while . Having said that the million dollar question is why the fees were not

legislated for ? Could it be that HMCTS do not want to appear heartless by heaping further financial stress on a debtor ?

 

 

You have raised two points...why the costs are not added to the distress warrant when it is issued and secondly, that the fees are disproportionate.

 

Firstly, the distress warrant states upon it the following:

 

"You may take goods and money belonging to the defendant to the value of the money owed.......and the costs of carrying out this warrant"

 

If the costs of enforcement were ADDED to the amount on the distress warrant at the "time of issue" this would be wrong because, at that stage, the amount due would only be the amount of the debt showing on the court records. On the day that the warrant is showing on the Approved Enforcement Company records, the "administration fee" of £85 can be added. You may care to note that most people actually pay or make a payment proposal at the "admin" stage.

 

Fees are disproportionate.

 

In my post number 11 you will see that in the late 1990's when contracts were agreed with each MCC the fees charged varied between £150 and £220.

 

In fact, in 2001 there was a very detailed study undertaken (which consisted of hundreds of pages) and from this, it was was clear that courts were routinely receiving complaints from debtors that the fees being charged were "disproportional" to the level of fine being enforced.

 

In 2006, when DCA awarded contracts to four Approved Enforcement Agents, it was a condition of the contract that each company would "cap" the fees charged to debtors at £200. This charge covered the administration stage and attendance to the debtor's property. In the rare event that goods were actually removed, additional fees were permitted.

 

In 2009 when new contracts were awarded ( following the expiry of the previous contracts) the Ministry of Justice permitted each company to charge a fee at the administration stage of £75 and a "one off" visit fee to the debtors property of £200. These fees were slightly increased around a year ago when the contracts were extended. The new fee being £85 and £215.

 

The fees currently charged by the Approved Enforcement Agents is more or less identical to the fees proposed by the government under the Consultation Paper on Bailiff Reform ( whereby the governemnt are proposing an "admin fee" followed by a "one off" attendance fee. As such, it would be difficult to argue that they are currently "disproportionate".

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An interesting point . If the fine is paid before or after the bailiffs get involved. is irrelevant If the bailiffs are so sure of themselves why dont they they bring their own court action to get their fees ? We know that Barstons would chase a penny down a hill !

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It's a shame you admitted it. Had you denied it, I believe that had you gone to your Union rep, they may have been able to stall for time for them to look into it and build up your defence. That way you may have

been able to avoid any decision being made within the two weeks you have left. So it is possible you could have left without that being added to any references or indeed your work record.

 

As you have admitted it, you could be dismissed under Gross Misconduct. If you do have a Union , I think it best that you speak to them urgently to see if you can avoid dismissal. I imagine that your new

company would already have taken up references if they have given you the job.

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It's a shame you admitted it. Had you denied it, I believe that had you gone to your Union rep, they may have been able to stall for time for them to look into it and build up your defence. That way you may have

been able to avoid any decision being made within the two weeks you have left. So it is possible you could have left without that being added to any references or indeed your work record.

 

As you have admitted it, you could be dismissed under Gross Misconduct. If you do have a Union , I think it best that you speak to them urgently to see if you can avoid dismissal. I imagine that your new

company would already have taken up references if they have given you the job.

 

I am assuming that the above post is not in relation to this thread???

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