Dismissal after staff party

[AlfieJack]

To be deleted.

[Johnboy007]

Re: Dismissal after staff party

Hi,
The action by the new manager is clearly unlawful.
The correct procedure is to suspend a member of staff, pending an investigation and probable disciplinary proceeding depending on the outcome.
You should ask your manager for a copy of the companies disciplinary, appeals and grievance procedures.
You should also check the terms and conditions in your contract of employment.
The terms of the contract are the rights and obligations which bind the

employer and employee to the contract.

The terms of a contract can be:
express (those which are explicitly agreed between the employer and
employee, either in writing or orally)
implied (those which have not been spelled out but which would be taken
by the people involved to form part of the contract) or
statutory.

Implied terms are often:

•
too obvious to mention or because the people involved assumed they would
be incorporated at the time the contract was entered into (eg: that the
employee will not steal from the employer or that the employer will provide a
safe working environment)

necessary to make the contract workable (eg: that an employee employed
as a driver will hold a valid current driving licence)
•
the custom and practice of the business or industry, ie: where a particular

custom or practice has been adopted over a period of time

The main thing here is 'Custom & Practice'.
If you can show that taking the clearly marked 'for staff use' bottles home has occurred over many years with management approval, and that this practice was known to all staff members.
Then you can claim, that the actions taken by the three dismissed employees, did not amount to misappropriation of company property, but was in fact, custom and practice and therefore accepted by staff members to be part of implied terms and conditions of their contact of employment.
The three employees who were forced to resign, should write to the company to reapply for reinstatement without loss of privileges and pay, based on the above information. ( which is from ACAS the mitigation company)
keep us posted on any outcome..:tinysmile_twink_t2:

[stevemLS]

Re: Dismissal after staff party

No doubt the employer will characterise it as theft = gross misconduct = summary dismissal.

[Johnboy007]

Re: Dismissal after staff party

No doubt the employer will characterise it as theft = gross misconduct = summary dismissal.

Not without going through the correct procedures. Otherwise if they have been employed for longer than two years and they can show 'custom and practice' then they may very well have a case of unfair dismissal.
If you can show 'custom and practice' then it doesn't amount to theft, no matter what the employer may suggest.
What happens to unfinished bottle marked for staff use?
Are they sold?
Are they emptied away?
Are they kept until the next company 'bash'?

[stevemLS]

Re: Dismissal after staff party

Johnboy - I wasn't suggesting the employer would be correct, pre-empting the argument.

Custom and practice can be tricky though.

And you can summarily dismiss for gross misconduct, you do not necessarily have to go through a process. (Although to take it through a proper process is best practice)

[AlfieJack]

Re: Dismissal after staff party

The booze has always been kept for the next 'Christmas' party and it is always clearly labeled for us.
They are going to compile as many statements for a case of customer and practice.
Thank you

[stevemLS]

Re: Dismissal after staff party

I don't understand, either it "has always" been kept for the following year, or staff have been allowed to take it. It can't be both?

[Johnboy007]

Re: Dismissal after staff party

The booze has always been kept for the next 'Christmas' party and it is always clearly labeled for us.
They are going to compile as many statements for a case of customer and practice.
Thank you

Get it right........ it's 'CUSTOM AND PRACTICE'
Over the years it has become the custom and practice for staff to drink from bottle clearly labelled for 'Staff Use', and to take some bottles home afterwards. This was done with management knowledge at the time, and was not done in an intentionally underhand or dishonest way.

The more statements you get, especially from managers or former managers, then the stronger their case.

[Johnboy007]

Re: Dismissal after staff party

Johnboy - I wasn't suggesting the employer would be correct, pre-empting the argument.

Custom and practice can be tricky though.

And you can summarily dismiss for gross misconduct, you do not necessarily have to go through a process. (Although to take it through a proper process is best practice)

Hi Steve,
Yes custom and practice can be difficult, but not impossible.
In this case, it amounted to blackmail.
Sign a resignation immediately without further pay is unlawful.
Their contract of employment would give them the right to 'notice with pay'.
Unless the correct procedures have been followed by the company and they had been dismissed for 'gross misconduct'.
I wonder what view a tribunal would take?
The drink, after all, was for staff use.
No specifications or conditions, or limitations had been imposed.
So had the staff committed misappropriation of company property.
In this case, me thinks not.
They are members of staff, so the bottles was theirs to drink.
If something has 'gone on' over many years, and the vast majority of staff know about it, and accept it as the 'norm'.
And if the management at the time, have given tacit, or otherwise approval to the action, it can be construed as custom and practice.
It is something I would certainly press the company to accept, if I was representing them.
I would also ask, have staff been instructed that the drinks are for internal use only?
I would ask, that as this habit has been going on for so long, why have the company not taken action before this time?
I think the company should let this go, and learn by their mistakes.

When I was a Senior Shop Steward, I did have occasions to represent people who management wanted to sack for gross misconduct.
In every case, I persuaded them to let the employee resign of their own free will.
It resulted in the company avoiding any claims in a tribunal for unfair dismissal, and the member of staff receiving their holiday pay and a weeks wages.
So blackmail should be avoided..........
Management beware...
It also resulted in them, not getting a bad reference from the employer

[Johnboy007]

Re: Dismissal after staff party

I don't understand, either it "has always" been kept for the following year, or staff have been allowed to take it. It can't be both?

I can understand your point Steve,
Evidently staff have been allowed to take it........:tinysmile_twink_t2:

[stevemLS]

Re: Dismissal after staff party

I know exactly what you mean but was simply point out that it is not necessarily straightforward.

I am also confused by OP saying that left over booze was always retained for the following year.

The ACAS statutory code does recognise that sometimes summary dismissal can take place, I don't see that this even approaches the most egregious gross misconduct that might warrant it.

[Johnboy007]

Re: Dismissal after staff party

I know exactly what you mean but was simply point out that it is not necessarily straightforward.

I am also confused by OP saying that left over booze was always retained for the following year.

The ACAS statutory code does recognise that sometimes summary dismissal can take place, I don't see that this even
approaches the most egregious gross misconduct that might warrant it.

I agree Steve.
It appears that the new general manager had 'jumped the gun'. Probably trying to impress the CEO.
The correct recognised procedure should have been, suspension pending a disciplinary hearing. (on full pay)
Then a decision to dismiss or any other action to be decided at that hearing.
The employees should also have been given the right of representation from a union official, or a fellow member of staff to accompany him/her.
I would have loved this case.........
:tinysmile_twink_t2:

[jon1965]

Re: Dismissal after staff party

As far as I am aware , after 2 years service you can not just sack someone for gross misconduct. You have to investigate and follow the proceedure

[wales01man]

Re: Dismissal after staff party

Having owned a Pub I would rather the staff asked for a drink I would have given them it as I often did than have them steal it which is theft if they drank the drink at the party all well and good but walking out with it in my book is stealing what else have they walked out with.
As for unfair dismissal that's for a tribunal to decide

[AlfieJack]

Re: Dismissal after staff party

Apologies for my incorrect terms.
And by saying the alcohol was left for the following year, I was referring to alcohol that hadn't been taken or drank and was left there.
Thank you for your help.