Legal Position

[LN1893]

For the past 9 months I have been working to unravel a Crypto mining operation within my company and related purchases by members of staff to enable this mining to take place. This amounts to large sums of money for items not required by the company.I have involved the Police but they say the purchases were approved by other staff which amounts to authorisation, therefore not criminal and I need to take a civil route which is costly and the company has suffered enough and the stress this has caused is unbearable.

All the staff in question have either resigned or been dismissed. However this did also highlight that a member of staff was, unbeknown to me ,using business debit cards belonging to myself and the finance manager to make such purchases. When questioned in an investigatory meeting he denied all of this.I was later to discover that he had used these cards to make personal purchases (by mistake!) as well as purchases for the crypto operation on the company cards stored in his personal shopping sites.The company had the same shopping sites so they ran in parallel and went undetected .He paid the money back where we identified personal purchases but he has not disclosed others & we also believe he has sold company equipment which he refuses to either confirm or deny.. He was a senior manager employed for many years & I felt his warranted a dismissal for gross misconduct.There are potentially large sums of money that he has spent for personal purchases and unnecessary IT equipment to aid the crypto operation dating back for at least 7 years.

No doubt he is going to go to a tribunal as he says that the punishment was unfair. and invoked our appeal process. Should I report this as fraud to the police again as it rather changes the stance of authorising purchases but more to the point I want to have a very strong case in defending the potential tribunal claim. Clearly all trust has gone and I feel strongly that dismissal was the only option.

[echat11]

Hi LN1893

Welcome to LB

'He paid the money back where we identified personal purchases but he has not disclosed
thers & we also believe he has sold company equipment which he refuses to either confirm or deny.'

What you need to do is identify the total loss to the company (with reasons for the loss).
I doubt the authorities will entertain anything without knowing 'exactly' what the financial
lost is through fraud / theft. You could call in specialist auditors.to track down financial
losses through theft. That will help regards the authorities and employment tribunal.

You can send your bank / credit card companies a SAR, they have 30 days to provide
the information.

https://legalbeagles.info/library/gu...ccess-request/

Also do you have Employee Dishonesty Insurance? Check your insurance policies.

[atticus]

An SAR for company accounts? Really?

[echat11]

An SAR for company accounts? Really?

Really, a limited company cannot make a subject access request, but a director can.

[atticus]

yes, but whose data?

[echat11]

yes, but whose data?

The Directors, the finance manager etc.

[LN1893]

Hi LN1893

Welcome to LB

'He paid the money back where we identified personal purchases but he has not disclosed
thers & we also believe he has sold company equipment which he refuses to either confirm or deny.'

What you need to do is identify the total loss to the company (with reasons for the loss).
I doubt the authorities will entertain anything without knowing 'exactly' what the financial
lost is through fraud / theft. You could call in specialist auditors.to track down financial
losses through theft. That will help regards the authorities and employment tribunal.

You can send your bank / credit card companies a SAR, they have 30 days to provide
the information.

https://legalbeagles.info/library/gu...ccess-request/

Also do you have Employee Dishonesty Insurance? Check your insurance policies.

Thank you, I'm checking this out with my insurer.

I tried the SAR approach but got no where !!

[atticus]

For a case like this, you really need to consult the company's solicitors.

SARs have their place and their uses, but clearly this is not such a case.

[wales01man]

Are you a director /shareholder or owner of the company?

[ULA]

Coming at this from a different perspective. In the last paragraph of your initial post you state that he is no doubt "...going to go to a tribunal as he says that the punishment was unfair. and invoked our appeal process.".

What you will have to defend at the tribunal is the potential claim for unfair dismissal and the disciplinary process you followed that resulted in his dismissal. I would be interested to know what the allegations were that you set out in the letter inviting him to the disciplinary meeting and the evidence you provided him to support those allegations in advance of the meeting. It will be this that an ET will consider whether a reasonable employer, given the same set of circumstances would have reached a conclusion to dismiss and in doing so was the process you followed fair and reasonable.

[LN1893]

Are you a director /shareholder or owner of the company?

I am a Director

[LN1893]

Sorry its been a while to respond I have now received the Tribunal paperwork.The claims are that a predetermined decision had been made to dismiss due to us blocking the employees email during the deliberation period prior to the notification of the outcome when the staff member returned to the desk and was unable to gain access to emails.This is simply not true but acceptance of there may have been difficulty is acknowledged.One would question why someone facing allegations of misuse of company bank cards not in their name would be doing that !

At the appeal the Microsoft details were provided showing emails were accessed 5 minutes before the meeting and the password was changed following the dismissal 3 hours later.Emails had been sent that morning. Surely as a business we have a right to protect our data and ensure that it is protected and regret not restricting access sooner has 100's of documents had been deleted following the initial investigation 4 weeks previously which was discovered after the dismissal along with further evidence of personal purchases made with company bank cards.

The tribunal paperwork makes no reference to the actual reasons for a dismissal for gross misconduct.

Any advice would be helpful.tribunal claims are so stressful and time consuming and just seem to be a means of compensation when the company has funded staffs personal purchases.

Thank you

[Retromau5]

The access to emails would be a matter of security, with the investigation being about matters as serious as you have discribed. But as you have said you have evidence that proves this claim is untrue then your argument appears to be sound. Regardless of that I don't think it would be unreasonable to restrict access whilst they were there nor do I see how it could show a predetermined outcome any more than a number of other explanations, only that this one seems to benefit them.

Ideally the employee should have been suspended for the duration of the investigation at the beginning, with access to company documents or emails allowed under supervision upon request. But I suppose you've aware of that now.

[ULA]

So clearly you are now facing having to provide a response to a claim and you need to complete an ET3.

As per my post #10 this is down to you proving you followed a fair disciplinary process and that any reasonable employer would have come to the same conclusion, depending in the actual claim/s being made.

I have several questions before being able to advise further:

1. When was the termination date of the individual?
2. Did you engage in early conciliation?
3. When was the ET1 submitted?
4. What precisely is the claim or are the claims?
5. How long was the individual employed at the company?
6. What briefly was the process you followed for this specific individual in their disciplinary and termination process, including any suspension whilst investigating?

[LN1893]

So clearly you are now facing having to provide a response to a claim and you need to complete an ET3.

As per my post #10 this is down to you proving you followed a fair disciplinary process and that any reasonable employer would have come to the same conclusion, depending in the actual claim/s being made.

I have several questions before being able to advise further:

1. When was the termination date of the individual?
2. Did you engage in early conciliation?
3. When was the ET1 submitted?
4. What precisely is the claim or are the claims?
5. How long was the individual employed at the company?
6. What briefly was the process you followed for this specific individual in their disciplinary and termination process, including any suspension whilst investigating?

1.Termination 15/05/24
2.No conciliation
3.ET1 Submitted 18/08/24
4.Claiming unfair dismissal due to predetermined outcome as claims made inability to access emails during deliberation period despite Microsoft data confirming access provided at appeal.
5.Employed by the company 17 years had previously had any financial responsibilities removed due to previously using company funds for personal use and cash withdrawals.
6.Investiagtion meeting held where any misuse of bank cards was denied.Further investigation uncovered further expenditure invited to a disciplinary meeting no suspension until after the disciplinary made an offer to repay some payments but many more have been discovered including company bank cards in personal accounts used for personal purchases.Requested info on ebay sales and purchases but none-forthcoming.
Appealed against the decision to dismiss due to length of service and the staff member had misremembered setting up accounts using business bank cards not in their name and making purchases.Claiming pre-determined decision due to inability to access emails during deliberation period on the day of the disciplinary meeting.
Appeal meeting held evidence of password change provided which is not being accepted.

ET3 needs to be submitted seeking support from DAS.