Wrongly handled?

[teaboy2]

Re: Wrongly handled?

Theres nothing wrong requesting that you be allowed at the meeting. Though it is up to the employer at the end of the day. In any case you need your SD to have notes from the meeting, as i have known employers to alter meeting notes they have taken to include stuff not even discussed, said or even mentioned, just to paint a bad light on the employee etc. So taking your own notes, means you can compare them against the employers note when they forward a copy to your SD.

[charitynjw]

Re: Wrongly handled?

Hot off the press, re a case outside of the statutory procedures.


http://www.pureemploymentlaw.co.uk/2...-doesnt-apply/


A right to be accompanied – even when the statutory right doesn’t apply?

September 27, 2013
St Francis Hospice v Burn,

http://www.bailii.org/uk/cases/UKEAT...6_12_1308.html

As you are hopefully aware, all employees have a statutory right to be accompanied at all disciplinary and grievance hearings by a colleague or a trade union representative. But there are still many other types of formal meetings that may take place between an employee and an employer where the statutory right to be accompanied does not apply.
In the case of St Francis Hospice v Burn, the employee argued that she should have been allowed a companion at a meeting with management, and that by failing to allow this her employer was in breach of its duty of trust and confidence.
Ms Burn was a nurse at the hospice and had been off work due to long-term sickness absence. A return to work meeting was due to take place. She had asked to be accompanied at the meeting but this request was refused. Along with various other matters, Ms Burn argued that this was a fundamental breach on the employer’s part, entitling her to resign and claim constructive dismissal.
At the Employment Tribunal the judge agreed with Ms Burn’s argument and she was found to have been constructively dismissed. The hospice appealed to the Employment Appeal Tribunal (EAT) and the appeal was on several grounds, most of which related to Ms Burn’s other arguments. However, in relation to the right to be accompanied, the hospice argued that as this is dictated by statute, it should not be possible for an employer to be in breach of contract if they do not go beyond the statutory requirements.
The EAT considered this argument, but found that there had been no error in the Tribunal’s reasoning. The context was very important*. Ms Burn had been away from work for a long time, was suffering from anxiety, and her GP had supported her request to have a companion with her at the meeting. In the circumstances of this particular case, unreasonably refusing to allow Ms Burn to be accompanied to the meeting was capable of amounting to a breach of the implied duty of trust and confidence.
So what can we learn from this case? While employment law is an area which is governed by many statutes, it is always crucial to bear the duty of trust and confidence in mind. This case was very specific to its facts, but it does illustrate that employers should try and look at the bigger picture rather than just the minimum of what legislation requires them to do.

(*My emphasis - the case will turn on the facts presented)

[teaboy2]

Re: Wrongly handled?

Wow - Well spotted Charity!

[peter p]

Re: Wrongly handled?

They have agreed to another meeting giving a longer time scale but....
My SD colleague has been phoned by the local Police and asked to go in for a voluntary interview. My SD also had a phone call late (11.30pm) the same night as a missed call and this turns out to be the same Police Officer.
We are saying nothing to the company at all in case of incrimination.
I now need to plan our next move-all for 2 cheap hair dyes!!!

[wales01man]

Re: Wrongly handled?

Next move seek a solicitor to attend police station with SD could develop into more might not hope for her sake it doesn't maybe time if no action is taken to move on.

[teaboy2]

Re: Wrongly handled?

Also advise the solicitor to review this thread, and see the advice give, i would be more than willing to discuss it on the phone with the solicitor too (so Pm me if you want my contact details for the solicitor), as the solicitor will likely not be clued up on employment law. Although you could PM BlueBottle since he was an Police Officer himself! In order to see what he thinks you should say to the police.

Infact i just PM'd BlueBottle for you.

[peter p]

Re: Wrongly handled?

Thank you so much for the above teaboy2 and should the situation demand it I will Pm you-I am so grateful for your help and input. I have discussed this at length with my SD to night and we, rightly or not, are sending the letter below-unless someone thinks different!!!
Dear ****
Thank you for your invitation to attend an “Appeal Hearing” on the 11th, unfortunately this is, in my opinion, is irrelevant, as there is nothing for me to “appeal” against. I therefore decline your invitation.

I will clarify the point of my correspondence. I formally complained to the company about a breach of my confidentiality after my initial disciplinary hearing. Between that date and before my second scheduled hearing, the fact that my colleague and I had been suspended and why, became public knowledge, it also became public knowledge that we were going to be dismissed at the next hearing.

The only way this information could have become public was for a (company name removed) employee or employees to have spoken about the matter outside their employment. This action, I feel is a breach of The Data Protection Act 1998 and caused me embarrassment and distress, resulting in me being given no option than to resign.

I accept that you have interviewed staff at several levels about the breach and it has been denied. However being realistic, no one is going to admit to being responsible for the breach.

I had offered to assist the company with information about the endemic practices at my former place of employment, however in light of recent developments, I withdraw the offer. I also will not enter into any further correspondence with (company name removed) on this matter.

I am now preparing my file to pass to the Information Commissioners Office, for the above reasons, and will leave them to deal with the matter as they see fit.
Yours Sincerely
---------------------------------------------------------------------------------------------------------
It's not the course of action we would have wanted but it drops her profile with the company and if we carry out the last lines threat (yet to be decided) it will hopefully make them get their house in order or rethink the situation.
Comments good or bad, welcome-I think.

[teaboy2]

Re: Wrongly handled?

Thank you so much for the above teaboy2 and should the situation demand it I will Pm you-I am so grateful for your help and input. I have discussed this at length with my SD to night and we, rightly or not, are sending the letter below-unless someone thinks different!!!
Dear ****
Thank you for your invitation to attend an “Appeal Hearing” on the 11th, unfortunately this is, in my opinion, is irrelevant, as there is nothing for me to “appeal” against. I therefore decline your invitation.

I will clarify the point of my correspondence. I formally complained to the company about a breach of my confidentiality after my initial disciplinary hearing. Between that date and before my second scheduled hearing, the fact that my colleague and I had been suspended and why, became public knowledge, it also became public knowledge that we were going to be dismissed at the next hearing.

The only way this information could have become public was for a (company name removed) employee or employees to have spoken about the matter outside their employment. This action, I feel is a breach of The Data Protection Act 1998 and caused me embarrassment and distress, resulting in me being given no option than to resign.

I accept that you have interviewed staff at several levels about the breach and it has been denied. However being realistic, no one is going to admit to being responsible for the breach.

I had offered to assist the company with information about the endemic practices at my former place of employment, however in light of recent developments, I withdraw the offer. I also will not enter into any further correspondence with (company name removed) on this matter.

I am now preparing my file to pass to the Information Commissioners Office, for the above reasons, and will leave them to deal with the matter as they see fit.
Yours Sincerely
---------------------------------------------------------------------------------------------------------
It's not the course of action we would have wanted but it drops her profile with the company and if we carry out the last lines threat (yet to be decided) it will hopefully make them get their house in order or rethink the situation.
Comments good or bad, welcome-I think.

Hold off on the letter for the moment, we need to know what the police involvement is here. i.e investigating your SD for theft, where company reported her - Or if their involvement is a much wider investigation of what was happening at the branch.

Either way prepare a written statement based on the information that bluebottles pm'd back to me, which is below, to give to the police officer and to your solicitor.

Hi Teaboy,

Good to hear from you again.

Looking back through the thread, my view is that the employer has handled the matter badly and is about to make the matter a lot worse by involving the police. If the employer is hoping the police will focus blame on the former employee, I am of the opinion this may backfire on the employer. There are clear indications that the manager was allowing/permitting pilferage to go on and, indeed, may have been attempting to conceal it from senior management. As I explained on the thread, there are statutory defences to Theft which can be found in Sections 1-7, Theft Act 1968. You can download an up-to-date copy from www.legislation.gov.uk. Also check out CPS Legal Guidance.

If the police get the impression that the manager permitted pilferage, they may share this with other law enforcement/regulatory agencies, particularly, HMRC VAT Section and HMRC PAYE & NI Section, who may then launch an investigation into the employer's Corporation Tax declarations, VAT Returns, PAYE and NI records.

You may well be correct in what you say that the employer is trying to get the police to investigate wider fraud by the manager. However, the way the employer has gone about dealing with the matter is clumsy to say the least. My opinion is that the employer is possibly opening a Pandora's Box. If details of the matter find their way into the public arena, including the manager permitting pilferage, the proverbial will hit the air-conditioning and the manner in which the OP's friend was treated may well result in the employer suffering loss of reputation as well as exposure to litigation.

Kind regards,

BlueBottle

Tell the police that you will only attend an interview at the police station with your solicitor present, but you are willing to discuss the matter informally, but only if they agree to speak to you and your SD at your home, where you can tell them about whats really going on at the branch. Remind them the matter is very much an employment dispute and that your daughter had not committed any criminal offence (a view supported by myself), the fact the police were not called in at the time by the employer is evidence of no wrong doing by your SD. Also point them to this thread were they will clearly see your SD committed no criminal act.

[charitynjw]

Re: Wrongly handled?

Hipeter,

As you can probably gather from my previous posts on this thread, my feeling has been that, on balance, & from an employment law perspective, the result of an ET case, if it were to go that far,would probably go in favour of the employer.
My reason for this is that, once the issue of being complicit in the appropriation of goods is established, and using the objective, not the subjective, test of whether a reasonable person would realise that it was legally wrong to take goods without payment, then it would be within the range of reasonable responses for the employer to dismiss the employee.
I really don't think 'custom & practice' would be applicable in light of the culpability involved.
I can understand Teaboy's reasoning & that we therefore differ*,but I think that nowadays the ET tends to give the employer a lot of latitude, & is reluctant to substitute the employer's decision unless there are serious procedural irregularities, or if they are wrong in (employment) law.

That said, the employer's latest tactic, that of police involvement, could be quite revealing.
Why, some 2 months after the incident, would they now feel it necessary?
& the criminal burden of proof is very much higher than the civil burden; not only would it have to be proved that there was an intention to commit an unlawful act, but the question of whether the owner, through their manager(s), consented to it.
I'm not completely au fait with criminal law, but in some areas undue influence can be a factor - maybe Bluebottle could assist in the definitive answer here.
Certainly, if I were an officer of the law, I would not take too kindly to an employer trying to muddy the water by using the police to decide an issue in what has been to date a civil dispute.

*At this point I wish to declare my black belt 5th dan in feng shui!

[teaboy2]

Re: Wrongly handled?

Hey Charity - Totally understand your view here - which in normal circumstance i would agree with you. But i have to disagree on this particular case, as you already know, though it makes a change to have an amicable and in a constructive disagreement with another LBer lol.

Anyway...

If the company are not happy about whats been happening at that branch, then they should be taking it up with and out of the manager, not SD or the other staff member as they have a clear statutory defences under sections 1 through to section 7 of the Theft Act 1968 as pointed out by BlueBottle in his PM to me and as he explained in in his post on page 5 of this thread.

So if the employer has a statutory defence to allegations of theft under section 1 - 7 of the theft act 1968, then no offence has been committed. And therefore there is no basis to sack them on grounds of reasonable believe said offence was committed, when the law says clearly that it was not. Doing so would be unfair dismissal - Do you agree or disagree Charity?

And that's on top of the fact it may have become custom and practice in that particular branch due to the manager allowing it over a substantial period of time, where it has become the norm where everyone was doing it.

In this case the SD has resigned on grounds of breach of confidentiality (data protection), which also amounts to breach of contract (duty of trust) and would therefore have a claim for Constructive Dismissal, and could easy defend against the employers counter claim regarding theft using said statutory defences.

We also have the issue as to whether SD and the other member of staff have been treated to their detriment, any less favourably to the other members of staff, whom have all apparently been taking stock from the branch home with them without paying. In my book they are being treated less favourably and to their detriment.

There is also the issue that the items were never taken of the company premises. If a shoplifter were to be apprehended, why do you think they always wait till they have exited the store before apprehending a shoplifter? For all the company knows the member of staff in possession of the items may have intended to pay for the items later in the day etc. when it would course less disruption.

[Inca]

Re: Wrongly handled?

It's just a shame 'our opinions'won't matter one iota to the case.
I'm probably wrong but imo this is getting out of hand and OP could end up with nowt but a big pile of debt

[charitynjw]

Re: Wrongly handled?

Hey Charity - Totally understand your view here - which in normal circumstance i would agree with you. But i have to disagree on this particular case, as you already know, though it makes a change to have an amicable and in a constructive disagreement with another LBer lol.

Anyway...

If the company are not happy about whats been happening at that branch, then they should be taking it up with and out of the manager, not SD or the other staff member as they have a clear statutory defences under sections 1 through to section 7 of the Theft Act 1968 as pointed out by BlueBottle in his PM to me and as he explained in in his post on page 5 of this thread.
Employment law is civil, not criminal - balance of probability, not beyond reasonable doubt.

So if the employee has a statutory defence to allegations of theft under section 1 - 7 of the theft act 1968, then no offence has been committed.
Agreed.
And therefore there is no basis to sack them on grounds of reasonable believe said offence was committed, when the law says clearly that it was not. Doing so would be unfair dismissal - Do you agree or disagree Charity?
Disagree - if the employer has a reasonable suspicion that appropriation has taken place, they are within their rights to terminate the contract. It would be for an ET to decide whether or not that dismissal was fair or not, having regard to all the circumstances.

And that's on top of the fact it may have become custom and practice in that particular branch due to the manager allowing it over a substantial period of time, where it has become the norm where everyone was doing it.
Custom & practice form part of the implied terms of a contract, but illegality could void the contract. (Parkingeye Ltd v Somerfield Stores [2012].)

In this case the SD has resigned on grounds of breach of confidentiality (data protection), which also amounts to breach of contract (duty of trust) and would therefore have a claim for Constructive Dismissal, and could easy defend against the employers counter claim regarding theft using said statutory defences.
Agreed on the reason for resigning, but if the resignation & the issues surrounding the breach of confidentiality were linked to the alleged theft, the theft would be taken into account.
On the one hand the two are linked; on the other the breach of confidentiality does not negate the breach of fidelity & trust which goes to the root of the employment contract.

We also have the issue as to whether SD and the other member of staff have been treated to their detriment, any less favourably to the other members of staff, whom have all apparently been taking stock from the branch home with them without paying. In my book they are being treated less favourably and to their detriment.
AFAIK, only the SD & 1 other have been 'caught red-handed' (Ok, SD has not admitted the fact, but the other has, & has implicated SD - that gives 'reasonable suspicion')
Anything else at this stage is only speculation & rumour.
There is also the issue that the items were never taken of the company premises. If a shoplifter were to be apprehended, why do you think they always wait till they have exited the store before apprehending a shoplifter? For all the company knows the member of staff in possession of the items may have intended to pay for the items later in the day etc. when it would course less disruption.
Appropriation has the meaning of adverse interference with, or usurping the rights of, the legal owner of the property.(R v Morris [1983])
It is not strictly necessary to remove them from the building, although of course by doing so the act is more obviously theft.
However, in this case was there an intention to knowingly appropriate the goods?
From what I can see, the answer would be no.
If SD honestly believed that it was done with the management's full knowledge, then the necessary mens rea is missing.

Whadya reckon?

[wales01man]

Re: Wrongly handled?

Why would the Police allow the OP to attend the interview with the SD he only knows secondhand what goes on at the company allegedly? a Solicitor would be a better advisor could tell her when to talk and when to keep quiet,without upsetting the OP maybe its best they stepped aside the police are unlikely to accept his allegations knowing that he was not at the place of work?
Inca you are probably quite right as we saw in a thread on employment matters yesterday all the opinions and quotes of law and employment regs were over the top and if I was the OP would have confused me a lot

[charitynjw]

Re: Wrongly handled?

Why would the Police allow the OP to attend the interview with the SD he only knows secondhand what goes on at the company allegedly? a Solicitor would be a better advisor could tell her when to talk and when to keep quiet,without upsetting the OP maybe its best they stepped aside the police are unlikely to accept his allegations knowing that he was not at the place of work?
Inca you are probably quite right as we saw in a thread on employment matters yesterday all the opinions and quotes of law and employment regs were over the top and if I was the OP would have confused me a lot

It can be confusing, Wales.
Employment Tribunal judges have on several occasions been taken to task by the Employment Appeal Tribunal for substituting their (ET) view on whether an action taken by the employer is fair or not.
Strictly speaking, as long as whatever action the employer took was within the 'range' of options open to it, the ET judge should not interfere with that decision.

[teaboy2]

Re: Wrongly handled?

Whadya reckon?

Hey Charity - Totally understand your view here - which in normal circumstance i would agree with you. But i have to disagree on this particular case, as you already know, though it makes a change to have an amicable and in a constructive disagreement with another LBer lol.

Anyway...

If the company are not happy about whats been happening at that branch, then they should be taking it up with and out of the manager, not SD or the other staff member as they have a clear statutory defences under sections 1 through to section 7 of the Theft Act 1968 as pointed out by BlueBottle in his PM to me and as he explained in in his post on page 5 of this thread.
Employment law is civil, not criminal - balance of probability, not beyond reasonable doubt.
But is it justifiable, fair and reasonable to dismiss someone on an allegation of theft, when no actual act of theft took place when the merits and circumstance involved in the case are taken into account, and where the employee has proved they have a statutory defence in criminal law to such allegations, and defense in that it was normal practice among all staff due to the manager (the companies representative) consenting to it? No its not fair, justifiable or reasonable. Is it not also an act of treating the SD and staff member less favourably to their detriment, by dismissing them whilst not taking action against the manger and the rest of the staff? Yes it is! Balance of Probability is not enough, there must be supporting evidence, and in this case, there is none to support there was in theft, but plenty to support that the manager had consented to it and allowed it to be normal practice for all staff in that branch.

So if the employee has a statutory defence to allegations of theft under section 1 - 7 of the theft act 1968, then no offence has been committed.
Agreed.
And therefore there is no basis to sack them on grounds of reasonable believe said offence was committed, when the law says clearly that it was not. Doing so would be unfair dismissal - Do you agree or disagree Charity?
Disagree - if the employer has a reasonable suspicion that appropriation has taken place, they are within their rights to terminate the contract. It would be for an ET to decide whether or not that dismissal was fair or not, having regard to all the circumstances.
But is reasonable suspicion / balance of probability enough for it to be justifiable, fair or reasonable for the employer to dismiss them, yet not take action against the manager or other staff who apparently did the same all the time! No its not. There is more to this than just the actions of the SD and the staff member!

And that's on top of the fact it may have become custom and practice in that particular branch due to the manager allowing it over a substantial period of time, where it has become the norm where everyone was doing it.
Custom & practice form part of the implied terms of a contract, but illegality could void the contract. (Parkingeye Ltd v Somerfield Stores [2012].)
Thats true, But as the manager is the representative of the company, and consented to staff taking items, then he was in his capacity of the company representative giving the companies consent. Therefore it becomes an implied term, whether the company where aware of it or not is a matter that they will have to take up with the company representative (the manager) and not something they should be punishing the employees for when said employees where led by the company representative, to believe the company consented to it. If there is reason to believe the company had consented to it, as there is in this case thanks to the manager, then no criminal or illegal act has occurred. Because reasonable believe that the owner of said property had given consented for said items to be taken, is a statutory defence. Therefore it is an implied, term via custom and practice, that the company consented to them taking items from the store due to the manger permitting it and allowing it to go on for a certain period of time where it then became the norm.

In this case the SD has resigned on grounds of breach of confidentiality (data protection), which also amounts to breach of contract (duty of trust) and would therefore have a claim for Constructive Dismissal, and could easy defend against the employers counter claim regarding theft using said statutory defences.
Agreed on the reason for resigning, but if the resignation & the issues surrounding the breach of confidentiality were linked to the alleged theft, the theft would be taken into account.
Yes but then where back to the statutory defenceand the question as to it being justifiable, reasonable and fair, to dismiss them on balance of probability alone given the overall circumstances and the actions of the manager!
On the one hand the two are linked; on the other the breach of confidentiality does not negate the breach of fidelity & trust which goes to the root of the employment contract.
Agreed

We also have the issue as to whether SD and the other member of staff have been treated to their detriment, any less favourably to the other members of staff, whom have all apparently been taking stock from the branch home with them without paying. In my book they are being treated less favourably and to their detriment.
AFAIK, only the SD & 1 other have been 'caught red-handed' (Ok, SD has not admitted the fact, but the other has, & has implicated SD - that gives 'reasonable suspicion')
True, but lets forget everything else involved here and say this was just a standard straight forward case of a member of staff failing to pay for items and SD failing to stop the other member of staff and put the items through the till. SD is therefore only guilty of not following company procedure and putting the items through the till. She herself did not have possession of the items, or took them of the shelve or failed to pay for them. So is that theft on SD's part, is it accessory to theft? No its not its just a breach of policy as SD had no intention of stealing or being an accessory to such act! But then did she know the items had not already been paid for or whether the other member of staff was going to pay for them later?
Anything else at this stage is only speculation & rumour.
Yes but based on what the OP has said so far and on "Balance of Probabability" based on what OP has said so far.
There is also the issue that the items were never taken of the company premises. If a shoplifter were to be apprehended, why do you think they always wait till they have exited the store before apprehending a shoplifter? For all the company knows the member of staff in possession of the items may have intended to pay for the items later in the day etc. when it would course less disruption.
Appropriation has the meaning of adverse interference with, or usurping the rights of, the legal owner of the property.(R v Morris [1983])
It is not strictly necessary to remove them from the building, although of course by doing so the act is more obviously theft.
However, in this case was there an intention to knowingly appropriate the goods?
From what I can see, the answer would be no.
If SD honestly believed that it was done with the management's full knowledge, then the necessary mens rea is missing.
Agreed to last 4 points

See in red above Charity.

Also don't forget in employment when investigating an employee, all facts surrounding the matter must be fully investigated. Its not just a case of "ohh well you did this so where dismissing you on Balance of Probability". In my view the employer here is on very shaky grounds.

A lot of people are reading what the SD was accused of and jumping the gun without looking at the full background and facts/story that are surround the issue and indeed may have even been what lead to this situation in the first place, which in my experience can be the difference between a fair dismissal and a significant compensation payout having to be made to the employee for unfair dismissal.