Handed my notice in but now they are taking me to a disciplinary- Help needed

[lfc3110]

God what a mess this week has been. I handed my notice in on 13th Jan knowing I had 2 weeks holiday entitlement to take. With that in mind my last working day is tomorrow although I am currently not due to leave til the 13th Feb. My employers know I am due to start my new job next week.

I have worked there 6 years and all was hunky dory til a new manager joined the team in April 2010. She took an instant dislike to me and has made working conditions very difficult since, which did result in me taking some time off last year with depression. I can't wait to start my new job but I have had a bomb shell delivered to me this week. Apparently my company credit card was used in December for my own personal use. I am not disputing that I haven't done it as I opened a new personal bank account in November and the debit card is very similar to my company credit card. I have on several occassions took my company card out to pay for items instead of my personal debit card and then realised and changed it. With this is mind I could quite of easily done so. My disciplinary has been set for next Weds but I start my new job on Monday. I have no idea what to do. I want to clear my name and if I have made a genuine transaction then I will repay what I owe. But do I tell my new employer what is going on- or should I start my new job. I have drafted a letter to my empoyers explaining the whole situation but not sent it as yet. All I want to do is start my new job but if I don't clear my name then work may not give my new employers the kind of reference I feel I deserve. Please help me. If I have had my resignation accepted can they then go ahead and dismiss me?
.

[lfc3110]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Please can anyone help with any advice or what they would do in my situation. Thanks

[charitynjw]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hi ifc3110,

Just to clarify, have you ever accidently used the company card for private purchases previous to this incident?

[teaboy2]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Thanks to Labman for PMing me about this thread.

Firstly as you have resigned and start a new job on monday whilst using up the remainder of your holidays it would be unreasonable for them to take disciplinary action requiring you to take time off your new job when they are fully aware that you start on monday. Plus is will cause you a financial detriment (mention that in your letter) due to loss of wages for that day at your new job.

Personally in the letter you have draft, ask them to provide your will evidence that confirms if you have accidently used the company card instead of your own due to them being very much similar, and once you have seen the evidence you will repay any amount owed in full within 7 days of receiving the evidence. Remind them that they are well aware you start a new job on monday, as a result of you resigning and therefore any disclipinary action now is unreasonable and illogical when you consider that the matter can be dealt with amicably without the need for disciplinary. Also remind them that the statutory diciplinary and grievance procedure (which they are now legally required to follow by law) would also likely not be completed prior to your contract termination date there makening such procedure for what was an maywell have been an honest mistake, a waste of your time, there time and money and you have ne intention of attending a disciplinary when you are expected to be act work in your new job by your new employers. Then inform them, that if they refuse to deal with this issue in an amicable and reasonable way, you will therefore be resigning with immediate effect and all holidays due but not take (between 26/01 and 13/02) are to be paid in lieu to you (note witholding of wages without employee consent is a breach of section 13 of the employment rights act 1998). Also state that you will deem any attempt by them to take disclipnary action against you, given the circumstances and the fact you have already resigned, as nothing short of a breach of the protection against harassment act 1997 which would also put them in breach of work pleace bullying and harassment laws. As quite simply disciplinary action given the circmustances is of no benefit to either party. And you see it as nothing more than a spiteful act by your manager who has hated you since day 1 - Then list all the incidents of you have had with the manager that may amount bullying or harassment in the work place. enf the letter with Note i have taken advice on this issue and i withold the right to take legal action withold further notice, Yours sincerely and without prejudice Mr/mrs xxxx

Bascially if you resign or quit with immediate effect then any holidays earned and still due from to day, you should still be paid for in lieu. If they try to withold payment for those holidays you have not taken but have earned, without your authrisation or providing you with proof you had used the company card as they claim, then you can take them to tribunal under section 13 employment rights act 1998.

Other than that your stuck in a catch 22, though i can assure you a tribunal would likely deem their attempt to discpline your as completely unreasonable given the circumstances.

ON top of that have you been disclipined before and do you still have any warnings on your employment record with current employer?

Reason i brought harassment into this is because i personally believe the manager wants to cause you problems with your new employer and would rather she sacked you for theft (to also cause problems with new employer) as their is no benfit to either you or the company by them taking disciplinary action when you have already technically left. So warning them you will resign with immediate effect if they continue this route of action, and warning them you may well it all back round on them (in a legal sense) will or should be a clear loud warning that they should take notice off. I know its seems strong words, but sometimes stronger the words are the better, as they tend to get through a lot better.

P.s. they would have to prove intent if they are trying to get your for theft. Otherwise, in normal circumstance, it would be unlawful dismissal.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hope you dont mind me asking but did you have to use a pin with your card purchase?

Were you still offically under a contract of employment when the alleged offence was committed.

Do you have any union representation

LL

[lfc3110]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

In response to the above questions, I have never used the card accidently before. whilst I have been disciplined it was over 3 years ago for a completely different matter, it no longer shows on my records. I do have a pin for the card which is the same as my debit card- I change them all so I don't forget them. I regularly went shopping at Morrisons for food for our team meetings and used the pin then. And no I do not have any union representation. Thank you teaboy2 for some much needed and helpful advice.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Sorry to appear blunt ,but if the answer to all the above questions is yes then, and with the greatest respect to Teaboy, I would not go in spouting laws and regulations because they will throw the book at you.
I would apologise for your error tell them you were under stress due to the change of job.
Only my opinion of course
LL

[teaboy2]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Sorry to appear blunt ,but if the answer to all the above questions is yes then, and with the greatest respect to Teaboy, I would not go in spouting laws and regulations because they will throw the book at you.
I would apologise for your error tell them you were under stress due to the change of job.
Only my opinion of course
LL

Its not as simple as that lindalou. They would have to prove intent, just because the answers to the above questions regarding PIn and Disclipnary confirm its the same PIN (which would actually strenghen the OP's defence of honest mistake) and disciplinary action against OP 3 years ago (which will have no effect as its is no longer on record and can not be used against the OP, as a result).

You say that quoting you would not go spouting rules and regulations like myself, as they will still throw the book at the OP anyway. well is it's those very rules and regulations that will prevent them from doing so, unless they want to be taken to tribunal LL. As its the rules and regulations that protect the OP from being indiscrimantely sacked without evidence proofing intent beyond probable doubt, unfairly treated, and protect the OP from being the victim to the employers unreasonable course of action i.e. taking disclipnary action when the employee has already resigned over an issue which is clearly an honest mistake, that can be corrected amicable without such drastic and unneed action. After all the OP is leaving anyway, so what have the employers got to gain from this disciplinary action execpt to attempt to prejudice the OP inregards to his new job, by sacking him/her which may well result in him/her losing the new job.

So LL but with all dues respect to you i found your comment unhelpful and wrong (if we all took that attitude we would all just be letting them all throw the book at us, creditors and employers alike) inregard to them still going to throw the book at him/her, because even if they did a tribunal would rip the employer apart.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Its not as simple as that lindalou. They would have to prove intent, just because the answers to the above questions regarding PIn and Disclipnary confirm its the same PIN (which would actually strenghen the OP's defence of honest mistake) and disciplinary action against OP 3 years ago (which will have no effect as its is no longer on record and can not be used against the OP, as a result).

You say that quoting you would not go spouting rules and regulations like myself, as they will still throw the book at the OP anyway. well is it's those very rules and regulations that will prevent them from doing so, unless they want to be taken to tribunal LL. As its the rules and regulations that protect the OP from being indiscrimantely sacked without evidence proofing intent beyond probable doubt, unfairly treated, and protect the OP from being the victim to the employers unreasonable course of action i.e. taking disclipnary action when the employee has already resigned over an issue which is clearly an honest mistake, that can be corrected amicable without such drastic and unneed action. After all the OP is leaving anyway, so what have the employers got to gain from this disciplinary action execpt to attempt to prejudice the OP inregards to his new job, by sacking him/her which may well result in him/her losing the new job.

So LL but with all dues respect to you i found your comment unhelpful and wrong (if we all took that attitude we would all just be letting them all throw the book at us, creditors and employers alike) inregard to them still going to throw the book at him/her, because even if they did a tribunal would rip the employer apart.

I am genuinely sorry if my comments were considerd unhelpful, and of course i coud be wrong, you seem to have an expert knoweledge in this area, i have spent some time working in HR for a large chemical company but of course that does not mean that my advice is correct in this instance..

I do not know the background , the people involved and more importantly the company policy.

At least the OP has a couple of options, he must use his own judjment

LL

[teaboy2]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

I am genuinely sorry if my comments were considerd unhelpful, and of course i coud be wrong, you seem to have an expert knoweledge in this area, i have spent some time working in HR for a large chemical company but of course that does not mean that my advice is correct in this instance..

I do not know the background , the people involved and more importantly the company policy.

At least the OP has a couple of options, he must use his own judjment

LL

Hi LL

It wasn't that your advice was unhelpful as a whole, as one your questions led to confirmation that the OP uses the same pin number on both company and personal cards. It was just the comment about not sprouting laws and regulations as they will still throw the book at the OP, that i found to be unhelpful on its own. Off course the may well do, the OP would have legal course for action if they did, in fact the OP may already have legal course for action due to the unreasonableness shown so far by the employer as a result of their wanting to enter disciplinary proceedings, when the OP has resigned already and starts a new job on monday (which they are aware off). To me, based on what the OP said about the manager, i think the manger has taken this too far simply out of spite and to cause the OP problems in his new job.

@Lfc

Have then been any further developments since yesterday, and do you have any further details as to what they are accusing you off?

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hello
I must say in addition Teaboy, that in my opinion you seem to be drawing a lot of conclusions on very little information.
It may be that the contract of employment signed by the OP itemized zero tolerance on the misuse of the company account; this is a usual clause in this kind of contract from my experience.
So there is an issue is whether this is a criminal matter or not, now you may not want to consider this but I think it should be borne in mind.
The issue of whether the OP would have had to look at the card at some point in order to enter the pin could be raised to prove intent, ( devil’s advocate).
All I am saying is that if the OP wants this to be settled in an amicable way he must act amicably, threatening court action himself in these circumstances is to my mind, and on the current evidence is unwise, in my opinion.
LL

[teaboy2]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hello
I must say in addition Teaboy, that in my opinion you seem to be drawing a lot of conclusions on very little information.
It may be that the contract of employment signed by the OP itemized zero tolerance on the misuse of the company account; this is a usual clause in this kind of contract from my experience.
So there is an issue is whether this is a criminal matter or not, now you may not want to consider this but I think it should be borne in mind.
The issue of whether the OP would have had to look at the card at some point in order to enter the pin could be raised to prove intent, ( devil’s advocate).
All I am saying is that if the OP wants this to be settled in an amicable way he must act amicably, threatening court action himself in these circumstances is to my mind, and on the current evidence is unwise, in my opinion.
LL

I have consider that, but it still does not make their actions reasonable. How is starting disciplinary action against an employee who has in fact already resigned (for reasons unconnected to the accusations) and starts a new job on monday, yet is being expected by current employer to attend a disciplinary hearing on wednesday when the current employer is aware the OP is suppose to be at work at the new employer reasonable? It is not at all reasonable, as he is technically no longer working for the current employer as from monday, and even if he/she now resigned with immediate effect the current employer would still have to pay him/her accured holiday pay.

You talk about a criminal matter, i fail to see how an honest mistake is a criminal matter, no criminal court would find the OP guilty for an honest mistake that he/she has offered to rectify in full. The fact the OP stated the pin number for company card and his/her personal card and the fact they are very similar in appearance point to it being nothing but an honest mistake that anyone of us could have mistakenly done. Also without proof of intent to steal from or defraud the company, then there is simply no criminal matter to answer too.

Clearly if the company was interested in an amicable solution they would have had an informal chat with the OP and attempted to resolve the issue prior to diving in at the deepend (especially given the circumstances, such as the OP having already resigned and due to start a new job) and starting formal disciplinary action which now requires the following of statutory disciplinary and grievance procedure as outlined by law. So its the company that has started taking legal action in terms of intiating statutory disciplinary procedures.

Am sorry LL, but a tribunal would simply rip this employer apart for the way they have acted by simply deeming their actions as completely unreasonable.

I as a business owner myself have a business card for my limited company and a card for my personal use, they are both identical, i carry them both in the same wallet, albeit the OP does too, i have mistakenly used my business card to pay for shopping and other things on many occasions and not realised till my accountant questioned the transaction, and yes i also, like the OP have the same PIN for both. In fact i do it at least once every VAT period. Oh and by the way, you DO NOT look at the card when entering the PIN, you look at the keypad to see what numbered button your pressing, so your clutching at straws with that one.

Not only that, it is a well known fact that a company taking disciplinary action can only hold meetings at reasonable times, given the OP will be working at a new employers next wednesday then it is clearly not a reasonable time to hold a disciplinary meeting, and it is completely unreasonable to expect the OP to take time off work at his new employers and incur a financial deteriment (loss of wages for the day) just to attend a disciplinary meeting with an employer that he no longer techinically works for. Being someone that used to work in HR then you of all people should know that. You should also know that until such meeting (i.e. wednesday meetings) has taken place the employer can not continue disciplinary action as doing so would be a breach of statutory disciplinary and grievance procedures. So no LL, they can not simply go through with it and throw the book at the OP if the OP does attend or refuses to attend the meeting due to it being held at an unreasonable time and likely to cause the OP a financial deteriment.

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hello
Perhaps if I explain this from a perspective of personal experience.
I have been involved in many disciplinary hearings (fortunately on the right side of the desk).
Usually the discussion before the meeting between the managers and the HR advisers settles the outcome to an extent before the employee enters the room. (Unfair but true).
It may be that the employer has already decided that all is required is a slap on the wrist, because frankly anything else just isn’t worth the trouble, the company will have more important things to do with their time.
So then the employee walks in with an attitude, he start quoting his rights and how he has been hard done by.
At that point all chance of an amicable settlement disappears the manager just refers the matter to legal and gets on with his job.
This is how it operates in a large company, as said I do not know the situation in the op’s case.
LL

[lindalou]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hello
In the spirit of the discussion.
It would seem to me that the issue is being clouded; surely the only major issue is the one of missuses of the company account.
I would have thought that the OP would be eager to attend any meeting in order to clear his name.
Regarding criminal charges, as I said it very much depends on the contents of his contract of employment, if (as is usual) it states that the credit facility is solely for the use of the company and misuse may lead to prosecution, then yes it is a possibility. (Similar to the signs in any supermarket regarding shoplifting)
The prosecution would have to show intent and “I did it by mistake “can be a defence, but given the circumstances here, I don’t know if a reasonable person would say that a card could be put into a card reader, then the pin entered and then removed without the purchaser realising that it was the wrong one, this of course is arguable either way, and I doubt that the company would go to the trouble unless pushed.
LL

[teaboy2]

Re: Handed my notice in but now they are taking me to a disciplinary- Help needed

Hello
Perhaps if I explain this from a perspective of personal experience.
I have been involved in many disciplinary hearings (fortunately on the right side of the desk).
Usually the discussion before the meeting between the managers and the HR advisers settles the outcome to an extent before the employee enters the room. (Unfair but true).
It may be that the employer has already decided that all is required is a slap on the wrist, because frankly anything else just isn’t worth the trouble, the company will have more important things to do with their time.
So then the employee walks in with an attitude, he start quoting his rights and how he has been hard done by.
At that point all chance of an amicable settlement disappears the manager just refers the matter to legal and gets on with his job.
This is how it operates in a large company, as said I do not know the situation in the op’s case.
LL

Thats a fair statement LL, but you also have to consider the Employees perspective as being that as far as they are concerned they are being disciplined for an honest mistake and the employer is acting unreasonable, so off course the employee is going to be ****ed off about it, or do you expect them to just walk in shake the managers/employers hands smile and say thank you for disciplining me knowing it could end with the employee being sacked. Also an employee is quite right to point out there rights, and in my experience the employers tend to know little of such rights or choose to ignore them and as you said actually have already decided the outcome prior to the employee stating his side of events. If the employer in this case wanted to resolve the issued amicable, then a simple informal chat about the issue with the OP would suffice, but clearly in this case, that has not occured, and now they are unreasonably expecting the OP to attend a meeting when he will be working for a new employer and the current employer if fully aware of that.


"Usually the discussion before the meeting between the managers and the HR advisers settles the outcome to an extent before the employee enters the room. (Unfair but true)"

Not just unfair, but unlawful too. Statutory procedure means they must investigate the accusation which may include a investigatory meeting with the Employee prior to disciplinary action. Also satutory procedure prevents them from making a conculsion without allow the employee to state his side or defend the allegations. Decide what actions to take prior to such meeting, regardless of whether it is followed through or not is unlawful and if followed through will and has lead to claims for unlawful dismissal based on either lack of evidence of predecided outcome. Statutory procedures, laws and regulation require an employer to investigate with impartiality and act fairly at all times.

End of the day LL what is the point in diciplinary action against an employee that has already resigned for different reasons, when the matter could have been resolved between the employer and employee if the employer had original approached the employee and asked them informally about the suspect usage of the company card, especially if it was a 1 off. I also made it clear that the OP should ask the employer in his letter for evidence of what they are accusing him off and to make it clear that if the OP had mistakenly used the company card instead of his own that he would repay the amount within 7 days. So the OP is as a result of that offering to resolved the issue amicable. As a result the ball is now firmly in the employers court, do they take up the employees offer the resolve the issue amicable and provide them the evidence requested. Or do they continue with disciplinary which would be viewed by a tribunal, given the circumstances, as not only unreasonable but unrealistic expectation for the employee to take time out of work from his new employer, which is likely to cause him problems with his new employer.

As i said it is clear to me the manager is only taking the diciplinary route out of spite. Once hes resigned what is the point in wasting time and money trying to sack him if it is not for spite? there is no point other than to cause problems for the employee in his new job and allow the manager to say oh he was sacked, he didnt resign. This issue could have been dealt with and settled informally by the employer, there is no need for starting disciplinary procedures when the employee has resigned already and is due to leave for another job anyway. Its not as if sacking him would give the employer the right to deduct the money from his wages as it doesn't work like that, they are still obliged legally to pay him his wages and accured holidays in full without deductions (unless consented too) otherwise they will be in breach of section 13 of the employment rights act 1996 and can be sued for it.

Hello
In the spirit of the discussion.
It would seem to me that the issue is being clouded; surely the only major issue is the one of missuses of the company account.
I would have thought that the OP would be eager to attend any meeting in order to clear his name.
Regarding criminal charges, as I said it very much depends on the contents of his contract of employment, if (as is usual) it states that the credit facility is solely for the use of the company and misuse may lead to prosecution, then yes it is a possibility. (Similar to the signs in any supermarket regarding shoplifting)
The prosecution would have to show intent and “I did it by mistake “can be a defence, but given the circumstances here, I don’t know if a reasonable person would say that a card could be put into a card reader, then the pin entered and then removed without the purchaser realising that it was the wrong one, this of course is arguable either way, and I doubt that the company would go to the trouble unless pushed.
LL

Yes it is being clouded i agree, but not by me. You have brought up criminal issues and whether or not people will notice they used the wrong card.

Regardless of the contract (which would not make it a criminal matter regardless of what the contract terms state) in order for it to be a criminal matter they would have to proof the employer used the card knowing it was the company card and did so with intent. As for spotting it was the wrong card when removing it from the machine, sorry but since when have people stopped to check the name on the card was there, you seem to forget the cards are very similar which means they are likley indentical with only minor differences, that are not noticed by glancing at them unless you hold them both up together.

The letter i told the OP to write included a clear offer to settle the matter amicable, which will likely put and end to the unreasonable disciplinary action by the employer. If it doesn't, then all the employee has to do is produce the letter at tribunal to show he had willing offered to repay any amount due to his honest mistake if the company had been willing to provide the evidence to show that he had indeed used the card in error. THats all there is too it at the end of the day, so really its not in the employers interest to not take up the OPs offer to settle the issue amicable. As the employer has nothing to gain by taking dicplinary action as they would still have to pay the OP his wages and accured holidays regardless of the value of the transaction for which the card was used, as that can not be deducted from his wages. Even if there was a term in his contract that allowed for them to make such a deduction, disciplinary action would still be an unreasonable course of action and completely pointless given the circumstances and would likely give the employee course to take the employer to tribunal if they were to sack him rather than allow him his notice period and for the contract to terminate as a result of his earlier resignation for unconnected reasons.