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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47418
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have recently caught an employee diverting funds away from

Customer Question

I have recently caught an employee diverting funds away from my company into her own bank account, I would say this is clearly theft. However we have recently received a letter from her solicitor saying "she was caught by illegal means " . She is saying because we set a trap using someone she believed to be someone else ! I cant believe the audacity of the individual. And we didn't call the police. Can any one help with legal advise please ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What queries do you have about this place?
Customer: replied 1 year ago.
Sorry , I am note sure what your asking ?
Expert:  Ben Jones replied 1 year ago.
You are asking for legal advice on this but I need to know what specifically would you like to know about it, what are yo hoping to achieve?
Expert:  Ben Jones replied 1 year ago.
Sorry just realised my typo, it should have read please not place...
Customer: replied 1 year ago.
The query I have is, can the employee defend her actions on the basis that she was caught by us using a trap for her. But all we were doing is trying to establish what was exactly she was doing. She had to report to, what she thought was an accountant but it was another member of staff checking what she was doing. The employee had to email the accountant details of her sales but these turned out to be false. She was sending false information to make it look like she took less money than she did. The rest was transferred into her personal bank account.
Does this help you ?
Expert:  Ben Jones replied 1 year ago.
thank you. Just before I continue can you plese let me know i you are interested in the employment side or the criminal side of this They are completely separate and you will need a different lawyer for each so I need to establish what I can help with. Thanks
Expert:  Ben Jones replied 1 year ago.
Hello, can you plese let me know i you are interested in the employment side or the criminal side of this? As mentioned, they are completely separate and you will need a different lawyer for each so I need to establish what I can help with. Thanks
Customer: replied 1 year ago.
I am interested in both. But first I would like to explore the employment side. Then if possible explore the criminal side . I hope this helps >
Expert:  Ben Jones replied 1 year ago.
Thank you. Employment and criminal laws are completely different so you will need to get two separate lawyers to advise on each. I can certainly help with the employment side but you need to post a separate quesiton to get assistance with the criminal side. So before I proceed can you please let me know how long that employee has worked there for?
Customer: replied 1 year ago.
The employee has worked for over 3 years,
Expert:  Ben Jones replied 1 year ago.
Ok thank you. In the circumstances you are able to consider disciplining and even dismissing this employee for what happened. The ways in which you caught them out will not be that relevant in the employment side of things because the rules are not as strict as in criminal law. There is no such thing as entrapment in employment law and this will all be relevant in relation to the criminal side only. As far as the employment law is concerned, 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. 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. Following that, you could consider disciplining or even dismissing the employee. This is your basic legal position. I have more detailed advice for you in terms of the full steps you must take in the disciplinary procedure to take this further, 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, there I no extra cost and 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.
That's interesting as her solicitor is using the term "fictitious Character" ,
Expert:  Ben Jones replied 1 year ago.
Thank you. A fictitious character is not an official legal term which would give them any specific rights, at least not in employment law. As far as the procedure is concerned, an 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 this case the allegations are serious so a dismissal can happen straight away if necessary. 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.

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