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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48176
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am heavily stressed at the moment. I am leaving my employer

Customer Question

I am heavily stressed at the moment. I am leaving my employer on Friday, but suddenly out of the blue, they have asked me to attend a disciplinary hearing. It is related to expenses, and they are requesting that I pay money back as I breached the rules. Just to explain, I have completed expenses in the same manner for the last 6 years, and it has never been flagged, and now as I am leaving, they have raised it. Just to explain the context, I have worked away a number of years, and rather then eating in restaurants etc. I claimed a food shopping bill, and then submitted this. I did not claim any resataurants on top of this or anything else. However, on occasions, my shopping receipt was less then I claimed in the expense tool, but no extra money came into my hands, as the company paid the expenses directly to cover my Amex Card. So I have never actually got any financial gain. This is what they have stated as the reason:
Claiming expenses outside of the expenses policy and in breach of the Business Conduct Guidelines (Section 3.5, Reporting, recording, and retaining information) when claiming expenses for meals whilst working away from home. Based on our investigation the overpayment for last year is $6,130. In addition, we seek to recover additional overpayment for the previous 6 years.
I think its because they did not want me to leave, and now wanting to ruin my next job opportunity. In addition to this, they have sent me a disciplinary prorcess, which keeps stating at various sections "This procedure is non contractual". I am totally confused, and worried, as I leave on Friday, and they want the disciplinary meeting on Wednesday. Please help advise.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello how long have you worked there for?
Customer: replied 1 year ago.

17 years in total.

Expert:  Ben Jones replied 1 year ago.
The key here is whether you have actually breached the policy and if you have actually made a financial gain out of the claims you submitted. This is something which the employer needs to investigate to start with and whether you are found guilty or not will depend on what they find and any evidence you provide. I understand that this is a stressful time and the employer is likely doing this on purpose but as an employer they do have the right to investigate any potential wrongdoings. As far as the procedure goes you have a couple of options:{C}· You can attend the disciplinary and defend yourself as best as you can, providing any evidence to show that you have not made a financial gain and reminding them that you have followed the same rules for the last 6 years without any issues{C}· You could instead consider getting yourself signed off work, for example with stress, and avoiding the disciplinary. Once your employment ends they cannot force you to attend a disciplinary hearing but they could hold one in your absence if they believe that the reasons for being off ate not genuine. What they could also do is provide a reference in the future saying you had left pending a disciplinary So there is no easy way or even a right or wrong way to deal with this – it really depends on how the employer is planning on dealing with this and what their intentions are. This is your basic legal position. I have more detailed advice for you in terms of the law on disciplinary procedures and what is expected of an employer to show that a disciplinary is conducted fairly, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.

Extremely helpful advice. I have made no financial gain, they are stating that I have breached there business rules in retaining records. If they wanted to recover money, as they threatended, I am assuming they would have to do this via the Civil Law processes?

Expert:  Ben Jones replied 1 year ago.
Yes you are correct. In terms of the procedure itsef, Misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.
In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure; and
• Shows they had reasonable grounds to believe the employee was guilty.
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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. 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.
If there are any doubts about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.
Customer: replied 1 year ago.

The evidence they have provided is very vague, they state "It's clear he was overpaid $6k over the last year because he claimed the maximum meal limit each day, but only supplied a weekly personal grocery receipt in a much smaller amount - but he also admitted doing this for 7 year". There is nothing else they have provided. If they made a civil case outside of employment, I am assuming it would lie with them to satisfy beyond reasonable doubt that I did something wrong.

I wanted to add that over the last 5-6 years, I have been rated as an outstanding employee who has been rewarded the highest appraisal score. My employer was not happy that I have taken a job elsewhere, and I think they have done this out of bitterness.

Expert:  Ben Jones replied 1 year ago.
Yea you are correct they will have to convince the court that what they claim is true and back it up wth evidence. But I hope that they are just trying to make your last few days difficult rather than actually go to court with it
Customer: replied 1 year ago.

Some minor development, I spoke to one of the managers involved, and they told me that I will be expected to make a gesture of paying back the non-receipted expenses. However, if I do this, it feels then I am admitting wrong doing. What is your advice on this from a legal perspective?

Expert:  Ben Jones replied 1 year ago.
Hello, paying for these expenses does not mean you are admitting guilt. For example you could make a payment without admissibility of guilt just to avoid any further action by them. But of course you do not have to do that and can just let them pursue it and prove that you actually owe this amount.