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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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An employee of ours was dismissed for gross misconduct

Resolved Question:

An employee of ours was dismissed for gross misconduct having knowingly deleted vital computer code. The employee was dismissed for gross misconduct when the problem was uncovered. The employee was with us for a year.
The former employee was granted shares in the company and we wish to buy back those shares at nominal value. The employee has been notified that they will shortly become liable for tax and NI on those shares unless they sign an off-market repurchase agreement.
The employee has stated they are happy to sign and off market repurchase agreement if the company pays 3 months salary in lieu of notice. They have also said that they would drop an unfair dismissal claim.
We are reluctant to pay the former employee because they were dismissed for gross misconduct.
My question is: "can the company sue the former employee for the cost of correcting the work they deleted?"
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

How long had the employee worked there for? Please can you also provide some information on the circumstances that led to the employee's dismissal? Thank you

Customer: replied 1 year ago.
The employee worked part time 22.5 hrs per week for 12 months. The employee was an App designer. They produced an operational App after 6 months work. The App was tested but in february 2016 the company issued a test version to a number of users. The results were wrong. We asked the employee to revert to the original form which approved in January. They said it would be difficult. The board met and agreed that the employee should make the code available to the CIO, they did this and we were able to inspect the code. It was clear they had not backed up the code, had not maintained source integrity and had "lifted" whole sections of copyrighted code from the Internet. The board agreed that the employee should be dismissed for gross misconduct. This was done according to their contract of employment. It has taken the company 6 months to re-write the code at a cost of more than £60,000.
Expert:  Ben Jones replied 1 year ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice in a while and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Expert:  Ben Jones replied 1 year ago.

Thanks for your patience. First of all he cannot sue you for unfair dismissal because he needs 2 years’ service with you to be able to do so. Those with less than 2 years service cannot claim for unfair dismissal unless the dismissal was due to discriminatory reasons, such as their gender, race, age, religion, etc. This does not appear to be the case here so there is unlikely to be grounds under which an unfair dismissal can be claimed.

He could potentially try and pursue you for the notice period but if you can show that his actions were indeed gross misconduct he will not succeed with that claim either.

As to whether you can sue him for correcting the work he deleted that would be possible depending on a few factors. For example, were they under specific instructions not to delete the code and did so with full knowledge of the repercussions it would cause the company? Were the costs in recovering the work reasonable and could these have been mitigated in any way – for example is that the absolute reasonable minimum you could have spent on recovering the work or did you spend more than necessary. These are all things a court would look at when considering a potential claim. It is certainly possible to sue him for the damages caused and the losses incurred, it is just that you may not necessarily recover the full amount, rather a proportion of it.

This is your basic legal position. I have more detailed advice for you in terms of the steps you need to follow to take this matter 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Customer: replied 1 year ago.
5 stars - quick service - we will continue our dialogue
Expert:  Ben Jones replied 1 year ago.

thank you. Whenever a dispute arises over compensation owed by one party to another, the party at fault can be pursued through the civil courts. As legal action should always be seen as a last resort, there are certain actions that should be taken initially to try and resolve this matter informally and without having to involve the courts. It is recommended that the process follows these steps:

1. Reminder letter – if no reminders have been sent yet, one should be sent first to allow the party at fault to voluntarily settle this matter.

2. Letter before action – if informal reminders have been sent but these have been ignored, the party at fault must be sent a formal letter asking them to resolve this amicably within a specified period of time. A reasonable period to demand a response by would be 10 days. They should be advised that if they fail to do contact you in order to resolve this matter, formal legal proceedings will be commenced to pursue the compensation due. This letter serves as a ‘final warning’ and gives the other side the opportunity to resolve this matter without the need for legal action.

3. If they fail to pay or at least make contact to try and resolve this, formal legal proceedings can be initiated. A claim can be commenced online by going to www.moneyclaim.gov.uk. Once the claim form is completed it will be sent to the other side and they will have a limited time to defend it. If they are aware legal proceedings have commenced it could also prompt them to reconsider their position and perhaps force them to contact you to try and resolve this.

Whatever correspondence is sent, it is always advisable to keep copies and use recorded delivery so that there is proof of delivery and a paper trail. The court may need to refer to these if it gets that far.

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