Employee on final warning

[rippedoffagain]

Hi

 

I have an employee who 11 months ago admitted dishonesty, and was given a final written warning. I now have reason to suspect that he/she has recently stolen money from the company, and whilst I don't have completely watertight proof, there is sufficient evidence to convince me of guilt.

 

Would my suspicion of wrongdoing be enough to dismiss this employee?

[ericsbrother]

As the person has been employed less than 2 years you can dismiss them with suitable notice without any reason other than on grounds that are discriminatory.

If I was in your position i would look at the relationship between you as an employer and why you have no confidence in their levels of honesty. So, simply, you say they are being dismissed due to breakdown of trust in the employer/employee relationship. There is no need to prove they are responsible for the theft but a balance of probabilities leads you to believe/suspect etc etc.

[becky2585]

Hi

 

I have an employee who 11 months ago admitted dishonesty, and was given a final written warning. I now have reason to suspect that he/she has recently stolen money from the company, and whilst I don't have completely watertight proof, there is sufficient evidence to convince me of guilt.

 

Would my suspicion of wrongdoing be enough to dismiss this employee?

 

Suspicion alone is not enough. You must also follow a fair disciplinary procedure (if they have over two years service).

 

You aren't required to prove that they did it; you simply need to have a reasonable and genuine belief in their guilt, based on a reasonable investigation. If the FWW is still live on their file, and they have a previous disciplinary warning for dishonesty, dismissal would almost certainly be a fair reaction in the circumstances. Have a read of the ACAS Code of Practice for guidance.

 

If they have under two years service then you can dismiss without following the usual procedure, provided that they can't assert an automatically unfair reason for asserting a statutory right/discrimination etc.

[billathome65]

Reasonable suspicion will not hold water here Becky2585 due to the nature of the suspicion unless there is concrete proof that this person stole the money they could claim unfair dismissal (and would probably win) And yes if they have been there less than 2 years they can dismiss without any comeback. But doing it just because you have an unproven suspicion is why I became a union rep.

 

If someone accused me and sacked me for theft without proof I'd take them to the cleaners ( It happened to me when I worked at an arcade just after leaving school I was very naive and just left very angry as I had never stolen a penny in my life. In Fact the day before the till was down by £10 I had handed in £90 a customer had dropped ) I won't handle money now and I work in a supermarket :smile:

 

If I was reping this person I would be asking for proof to back up the suspicion I'd want to see all and any witness statements linking this person to the missing money and If this person was sacked i'd be advising an appeal.

 

If you suspect this person has stolen, then go to the police or better still set up a hidden camera linked to your PC and leave temptation to get the proof.

Edited December 11, 2014 by billathome65

[SabreSheep]

Wrong, absoloute proof is not required.

 

Just a reasonable belief that the action was done by the employee after conducting a fair investigation.

 

Strict proof is only required for criminal law. Employment law is Civil and comes down to a balance of probabilities.

 

At the end of the day the test that would be applied in an employment tribunal would be the test of reasonableness. Unfortuantly this is a weak area for the employees side as all it accounts to is "Would another employer do the same"

 

The way for the rep to represent is to cast reasonable doubt on the accusation. EG Did anyone else use the till/area that the theft happened etc

[billathome65]

I did not say absolute proof was required. ( I Know it's based on probability ( Your boss says to you, it's probable you stole my money, but i have no proof your sacked. I said to accuse someone of theft and sack them without any Ioter of proof is going to lead to a big headache. (I paraphrase)

 

That's assuming the employee goes that far or just walks away Or if there is a rep or someone at ACAS, they could go to it's all ifs and buts.

 

If It was me being accused I'd hit the roof.

 

The way for the rep to represent is to cast reasonable doubt on the accusation. EG Did anyone else use the till/area that the theft happened etc

That's what I was getting at it's what I would do

Edited December 11, 2014 by billathome65

[SabreSheep]

fyi

 

Band of Reasonable Responses’ Test is Human Rights Compliant

 

07 January 2013

 

Novel arguments that the ‘band of reasonable responses’ test used in the determination of unfair dismissal claims should be strengthened in order to comply with human rights legislation have been rejected by the Court of Appeal. The Court found that the test of ‘proportionality’ applied under human rights law was essentially the same as the test used by an Employment Tribunal (ET) when deciding whether or not a dismissal was justified (Turner v East Midlands Trains Limited).

 

Ms Turner worked as a senior train conductor for East Midlands Trains Limited. She was dismissed for alleged petty pilfering and argued that the consequences of losing her job, in middle age and after 12 years of unblemished service, were so serious that it was not enough for the ET to ask itself whether her dismissal was within the band of reasonable responses open to a reasonable employer in the circumstances. There was no direct evidence that Ms Turner had engaged in wrongdoing and the case against her relied on statistics and inference.

 

It was submitted that, in those circumstances, the ET that heard her case should have gone on to consider whether her dismissal was ‘proportionate’ within the meaning of Article 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life.

 

Ms Turner’s unfair dismissal claim was dismissed by the ET and the decision was later upheld by the Employment Appeal Tribunal (EAT). The EAT ruled that the investigations carried out by East Midlands Trains Limited had been adequate and fair and that Ms Turner’s human rights were therefore not engaged.

 

Dismissing her appeal, the Court of Appeal ruled that the band of reasonable responses test laid down by Section 98 of the Employment Rights Act 1996 is ‘catholic enough to accommodate whatever standard of due process Article 8 calls for in a particular case’. Human rights legislation added little to the domestic test, which requires the ET to ‘invigilate the employment relationship by requiring the dismissal process to conform to a standard of fairness calibrated, among other things, to the grounds and consequences of the threatened dismissal’.

[SabreSheep]

Reasonable suspicion will not hold water here Becky2585 due to the nature of the suspicion unless there is concrete proof that this person stole the money they could claim unfair dismissal (and would probably win) And yes if they have been there less than 2 years they can dismiss without any comeback. But doing it just because you have an unproven suspicion is why I became a union rep.

 

If you suspect this person has stolen, then go to the police or better still set up a hidden camera linked to your PC and leave temptation to get the proof.

 

You did say you needed concrete proof above......

 

Anyhow also side note

 

Hidden cameras, are another mine field go careful there. Employees must be made aware hidden cameras are in operation.

 

When is covert monitoring justifiable?

 

Covert monitoring (where the individual is not aware the monitoring is taking place) will only be justifiable in exceptional circumstances where there are grounds to suspect criminal activity or extremely serious malpractice. If such monitoring is undertaken it would be advisable to ensure that:

 

• senior management authorises its use;
  
• it is only carried out for a set timeframe and as part of a specific investigation;
  
• the risk of intrusion on innocent workers is considered;
  
• areas where privacy is expected remain private; and
  
• limited numbers of people are involved.
  

If information obtained during covert monitoring inadvertently brings up evidence of other malpractice, this evidence should not be used against employees unless it is a case of serious gross misconduct. Where the misconduct is minor in nature, use of the 'secret' footage to discipline individuals will not be allowed.

 

 

 

Well doen for stepping up to be a union rep. Recruited quite a few union reps in my time and guided them along the path

[billathome65]

Already read but thanks for the FYI Sabresheep

 

I was referring to the fact that an accusation of theft against someone is an explosive thing and to go in with the accusation without some tangible evidence is asking for a major headache. ( That's all I'm getting at sorry if it came over a little wobbly I was working last night and off tonight so m a little tired at the moment. )

 

I am aware of the regulations around CCTV as we fight breaches of this at work quite often.

 

I know I have just joined and am chucking my two pennies in I don't mean to rub anyone up the wrong way ( That would be a sexual harassment case against me, I suppose LOL ) just trying to be supportive of the group and hopefully learn stuff which helps me as a union rep along the way.

 

Regards Bill

[Emmzzi]

Bill, welcome. It is probably helpful to state your sources where things are facts, or state they are opinions, or how you personally would tackle things, when that is what you mean

 

We all challenge each other on sources, debate is often helpful!

[billathome65]

Hi Emmzzi fair points and all noted thanks for the welcome.

 

In my opinion and from previous experiences with the above scenario to dismiss over a theft allegation without a smoking gun has lead to major headaches.

 

We had a case some time back where the employer tried to sack one of my family members with an accusation of theft, however, due to the persistence of her rep they had to submit a full apology on discovering lies were being used and not for the first time to end her employment we felt due to her complex mental health issues which the company fail time and again to support with.

 

Also, another case I dealt with where there was an allegation of theft / dismissal, which I had chucked out following an appeal due to a technicality of members working practices in store.

 

Once again Cheers and points taken on board.

 

Bill

[rippedoffagain]

Hi Emmzzi fair points and all noted thanks for the welcome.

 

In my opinion and from previous experiences with the above scenario to dismiss over a theft allegation without a smoking gun has lead to major headaches.

 

We had a case some time back where the employer tried to sack one of my family members with an accusation of theft, however, due to the persistence of her rep they had to submit a full apology on discovering lies were being used and not for the first time to end her employment we felt due to her complex mental health issues which the company fail time and again to support with.

 

Also, another case I dealt with where there was an allegation of theft / dismissal, which I had chucked out following an appeal due to a technicality of members working practices in store.

 

Once again Cheers and points taken on board.

 

Bill

 

Thanks all.

 

I have very strong evidence of theft. Without revealing too much, payments are taken for a service provided. I have statements from clients who have availed themselves of a service, but the payments have not been recorded on the relevant documents.

[steampowered]

The technical legal test is that you must have a 'reasonable belief' that the employee is guilty of the alleged misconduct.

 

You don't need absolute proof, but a hunch is not enough either.

 

In order for your belief to be 'reasonable' you would need to be able to explain to an Employment Tribunal why you think the employee is guilty and what evidence led you to make that decision. It doesn't need to be perfect evidence but you need something.

 

In order to avoid a claim that there was an unfair dismissal because you didn't follow a fair procedure, you would also need to be able to demonstrate that you properly investigated the allegation. It is best to follow the ACAS guidance on this to protect yourself.