Wrongly handled?

[peter p]

Hi my first post...
I will try to keep a long saga short. Step daughter was pulled in to a meeting with her manager and the companies security officer for not scanning all of a colleagues staff purchases into the till, it seems this has been a common practise at the shop. Both her and her colleague were suspended on full pay and asked to attend a hearing today. Her colleague admitted everything my step daughter nothing.
this was apparently discovered by the manager who "claims" she could see thorough the colleagues carrier back. It is believed that she searched it in her absence.
Mt step daughter is complete in the wrong and by her colleagues admission they have her "bang to rights".
Both individuals were told at their hearings that the meeting was private & confidential and not to be discussed with anyone. It has come to her attention via two members of the public that all the staff were told why they had been suspended and also that they were going to be sacked. It is believed that the area manger gave instruction for the sacking part to be given to staff as a warning.
On the basis of that she has resigned sighting the breach of confidence and that her fate had already been decided before her hearing and therefore their was no point in going and if she should be reinstated this breach of confidence would make her return to work impossible.
has she any recourse because of the breach and additionally should the company, a reasonably large group, take some responsibility for their staff purchase procedure being so poor. I have worked in retail for many years and staff purchases were either control by the manager or by some form of authority purchase paperwork with a clear audit trail.

[bluebottle]

Re: Wrongly handled?

Hi and welcome to Legal Beagles.

As a retired policeman, I cannot believe that an employer has acted so foolishly and allowed a manager to act in the way they have.

Searching an employee's belongings in their absence opens the employer to all sorts of allegations and may well amount to a breach of trust and confidence on the part of the employer. It also leaves the manager open to all sorts of allegations as well, particularly if any of the employee's personal belongings are damaged or go missing.

If your step-daughter is a member of a trade union, she should speak to them. Alternatively, she could speak to ACAS or CAB for advice/guidance.

[charitynjw]

Re: Wrongly handled?

Hi peter p,

The implied duty of care cuts both ways; it is applicable to both the employer & the employee.

I don't think the employer's actions are going to be the main issue.

Did the employee do the dastardly deed?

Yes!

End of.

The implied term cannot be used to control or regulate the exercise of an employer's discretionary power to dismiss an employee

Johnson v Unisys Ltd (2001)

[FlamingParrot]

Re: Wrongly handled?

As she has resigned rather than being sacked, if she wanted to take action against the employer she would have to claim Constructive Dismissal. Such claims have a very low success rate at the ET (just 3%), however, I know someone who managed to get a compromise agreement with a small settlement and an agreed reference after submitting such a claim, purely because employers find it easier and cheaper to settle rather than pay lawyers, prepare a case, etc. even if they were to win in the end.

This was a few years ago, I once also got a settlement after submitting a claim for unfair dismissal, however, the introduction of fees could make it more difficult to submit a claim with the intention of pushing the employer to offer a settlement, although it may well be worth it as even a small settlement is likely to be more than the ET fee, however, it's a bit more of a gamble than it used to be. :sad:

[charitynjw]

Re: Wrongly handled?

Personally, I don't think any claim would make it past the first hurdle.

I reckon it would be judged 'without merit' on the basis of my previous post.

& as it now costs even to lodge a complaint with ET (from memory, Ł250), it would be, in my opinion, a gamble not worth taking.

[charitynjw]

Re: Wrongly handled?

What has not been ascertained yet is

How long had she been working for the employer?
When was the employment terminated?

[peter p]

Re: Wrongly handled?

Wow, thank you everybody for the rapid input. Blue bottle, I agree and without that "evidence" they would not have a case and the search, if it took place, is wrong but unfortunately we (A) cannot prove it (B) it was her colleagues bag not my step daughters. On that basis whilst the manager could have carried out an "illegal" search would it help my step daughters case?
charitynjw, I agree she has been very stupid and is guilty as sin but, it seems that the manager has breached the privacy instruction given at the first meeting as well informing all the staff she was going to be dismissed on the day she was suspended. that's a terrible case of premature and unfair judgement against her. She has been employed for three and a half years and she terminated her employment, in writing on Monday, two days before the hearing, being Wednesday-tomorrow.
I don't think she wants to go as far as a tribunal, she is more concerned about future references,
Flaming parrot, I agree if we tried an ET chances would be very slim and I don't think that's what she is looking for. A clean reference would be nice a small settlement even nicer.
In general she realises she has been stupid but feels very angry at her treatment. I have been a manager at several levels and still am and I am appalled at what goes on at this shop. My SD has been given the keys and alarm codes to go in at 5am and put stock away. The assistant manager had over Ł200 missing on a safe check, this was covered up by the manager. All staff have been doing the same thing some even helping themselves to drinks and not paying for them. My SD was told she had a weeks holiday left on her return the manager said that a mistake had been made and she was not due that holiday but not to worry she would put her down as attending for that week as it was the managers fault add to this that staff pick what they want and then go to another member of staff to pay it's beyond belief. This business is no small one, its present in most town in two different guises in most cases.
I know this sounds like sour grapes and my SD does not want to grass on her ex colleagues

[charitynjw]

Re: Wrongly handled?

Hi

This is a civil matter, therefore not subject to 'beyond reasonable doubt', or how evidence was obtained, if it is true.

The salient facts are

Was there a dismissal?
Does the employee have the required qualifying period of employment?
Is there an admissible reason for the employer to dismiss?
Was the dismissal reasonable? (Theft=Gross misconduct=potentially instant dismissal)

As instant dismissal is an option open to the employer, it is very difficult to see a successful claim for constructive dismissal.

[bluebottle]

Re: Wrongly handled?

The search by the manager without the employee being present does raise serious questions about the veracity of any allegations being made by the employer and the justification for the search could be brought into question. If the employer is active in the retail field, is the OP's SD involved in the handling of dutiable goods, that is, goods subject to customs/excise duty, e.g. alcohol, petrol, tobacco?

[labman]

Re: Wrongly handled?

I agree. I don't your SD has any chance of succeeding with any claim. She was in the wrong, and there is no reason why she should be given a good reference. To be hard, she should have thought about that before doing what she did.

However, if she is lucky, many references nowadays only confirm dates that were worked, and don't comment beyond that unless a sacking has taken place. In your SD's case it hasn't. Sadly she forfeited any rights or opportunities to make amends the moment she resigned, but a bit of a Catch 22 situation.

I do think though that given what she knows goes on in the store, she should become a 'whistleblower' and contact the CEO to impart her knowledge. It would put a stop to the dubious practices going on in the store, possibly gain her a reference and save us, the public, money as it is us who ultimately pay for the things that go missing, extra time off etc....

[bluebottle]

Re: Wrongly handled?

I agree. I don't your SD has any chance of succeeding with any claim. She was in the wrong, and there is no reason why she should be given a good reference. To be hard, she should have thought about that before doing what she did.

However, if she is lucky, many references nowadays only confirm dates that were worked, and don't comment beyond that unless a sacking has taken place. In your SD's case it hasn't. Sadly she forfeited any rights or opportunities to make amends the moment she resigned, but a bit of a Catch 22 situation.

I do think though that given what she knows goes on in the store, she should become a 'whistleblower' and contact the CEO to impart her knowledge. It would put a stop to the dubious practices going on in the store, possibly gain her a reference and save us, the public, money as it is us who ultimately pay for the things that go missing, extra time off etc....

It may even put a stop to this manager conducting searches of employees' personal belongings without the employees being present. That practice could have serious implications not only for this manager, but the employer, also, if he/she was caught in the act. IMHO it is litigation waiting to happen.

For information, there are some employers who are empowered to search employees entering or leaving premises due to what the employer manufactures, processes or stores on their premises.

[enquirer]

Re: Wrongly handled?

As an employer may dismiss on balance of probability, her chances of a successful claim are effectively nil.

As she has got away with resigning, she would be very unwise to push this any further. Having the whole matter raked over is not in her best interest.

[wales01man]

Re: Wrongly handled?

Have to say regarding searching staff if they have taken nothing that does not belong to them what have they to worry about?in this case the OP is saying the SD did commit an offence its immaterial what others have done ,lets hope sh llearns from it and moves on

[bluebottle]

Re: Wrongly handled?

With regard to employers searching employees, other than those who are empowered by statute or by HMRC, I have noticed that even the legal profession is divided as to whether an employer has a legitimate right, if at all, to search an employee's person or personal belongings.

[charitynjw]

Re: Wrongly handled?

As regards to whether the (constructive) dismissal was fair or not, the 'search' is a red herring.