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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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We have a member of staff who took home the days takings instead

Resolved Question:

We have a member of staff who took home the days takings instead of depositing in the company safe as is company practice he said by mistake, after using some of the money from the till for his personal use as his bank card had been declined. When he returned the takings the following day it was short by £90 he later returned with £80 saying he had found it in his bag, but at no stage until his disciplinary hearing did he say he had 'borrowed' any money are we in a position to dismiss him?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has he worked there for?
Customer:

3 years

Ben Jones :

Apologies for the slight delay, I experienced some temporary connection issues earlier on. All seems to be resolved now so I can continue with my advice.

As the employee has over 2 years’ service they will be protected against unfair dismissal. This means that to legally dismiss them you need to show that there was a potentially fair reason for dismissal and also follow a fair procedure.

Misconduct, such as the allegations in this case, 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.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


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. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.

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.

Assuming you can show you have followed the above requirements and that you believe the employee’s conduct was dishonest, rather than a genuine error, you could potentially dismiss.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 3 years ago.
Hello Karen, could you please let me know if I have answered your original question or if you need me to clarify anything else for you in relation to this – this is needed so I can either keep the question open or close it if no further advice is required? Thank you