Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What would you like to know about this?
hello Ben, very sorry i had a phone call
I would like to terminate A's agreement immediately; we had one thing happening with around £1500 missing 18 months ago, which we took of someone else's salary; we have payday on Tues, and i would like to shave this off A's salary and pay back to the driver (who in the meantime left us);
on various other occasions during his shifts we had in average less cash takings, which he always could explain reasonably... A has a trusted position in our company hence there are loopholes that he can use (e.g. not billing transactions, as he has manager access to our till etc)... do i need proof for that?
So is this the only piece of evidence you have to back up the allegations against this person? Have there been any incidents whilst he has been employed by you?
Yes, but we could not figure it out at the time, A is holding a key position and so he was involved when we had incidents (always we came across them by coincidence).
It is almost impossible for us to track cash movements - he does a lot of late shifts, so we cannot prove if he puts a sale in the till or not; cameras we cannot put as our business is pretty confidential and most clients were upset once we tried to do (lots of Londoners seem to buy flowers for mistresses ;))
and on one occasion (the one mentioned above) - we took fingerprints on the envelope in question, which was emptied, but have been adviced that this could not be taken as solid proof at it was bearing clear prints of both people in question, so it was either A or B... no proof
ok thanks let me get my response ready please
The main issue here is that because this person has over 2 years’ service with you, they are protected against unfair dismissal and to fairly dismiss them you must be able to show that you had a potentially fair reason for dismissing them and also follow a fair procedure.
Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
However you are unlikely to be able to rely just on the letter you received because that would not directly be linked to the job he does now and you must be able to show there were reasons in their present employment which justify dismissal.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
There will always be a risk however because even if you believe you have followed all of the above requirements, the employee can still make a claim for unfair dismissal against you and it would then be for you to prove that the legal steps I explained has been followed and that the dismissal was fair. So you may have to formally justify your decision, should they decide to formally challenge this at tribunal, although of course there is no guarantee it would come to that, especially as they may be out off by the fees they have to pay to claim.
Hope this clarifies your position? If you could please let me know that would be great, thank you
thank you :) - in the contract it states that any kind of theft leads to immediate termination of his contract, i hope this is valid then... we will conduct some mystery shopping visits then.. have a good evening! Anian
you are welcome, all the best