Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. When did the dismissal take place?
a week or so
you want an exact date
no it's ok thanks
the union says it unlikely to reach court
were her actions that led to her dismissal linked to her medical condition?
well as I said in the long letter she was dismissed for accusations of theft
but she is sick and they know she gets confused at times is withdrawn and has difficulties talking to others she said she didn't know but now they claim she did because she recalled later that milk was in her old depot for 5 pence
she said she that at the time she took it she thought it was for free
she was happy to pay for that later
ok let me get my response ready please
I don't know what else to tell you she exposed herself and they took their chance
but they definitely looked for a reason to fire her earlier it seems even like some discrimination has been going on, recent disciplinary procedures stressed her out to a point where she was very unstable with her sickness crying a lot and hearing voices being very stressed out about work. It was easy for her to think that it is for free and due to her medical condition not to think to ask about it. Her employers seems to be ignoring all the mitigating factors and jumping in to the dismissal. She did not take it off site first of all. She only took a little bit no more than 25p or so worth. It was a warm drink after hours of work in cold warehouse. Canteen staff did not challenge her. They did not suspend her straight away but delayed it to the end of her work day. There is no pricing on sugar and milk and tee or anything in canteen for that matters. She explained them the situation that normally she takes her own milk and sugar and coffee but on one occasion she forgot. After she done it the first day she thought of taking some sugar in to the locker so that she does not have to walk there every morning or take it from home. If she would have to go there every morning to get it she would not go she would take a little bit of sugar from home. She cycles and her bag is heavy enough when she goes to work so she didn't want to carry a bigger container from home every few days.
They chose to ignore all that and her 8 years of service on 2 contracts.
she told them that she believes that size of the damage and circumstances at which her misconduct occurred should not classify it as a theft as she had fair reasons to believe that the sugar and milk were free
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:
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. Whilst a medical condition would not directly serve as an excuse for misconduct, but the employer would need to investigate whether medical conditions could have affected her actions and not just make a decision without that.
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 this case we are not talking about intended theft, and also the value is important – this is just a bit of sugar and tea, not stock or other higher value company property.
However, 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 or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated, which you have already done. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer, which is not an issue right now. Also if this appears to be a reason to get rid of her due to her condition, it could also be a discrimination claim. There is nothing stopping you from making wither claim, it is actually for the employer to justify that the dismissal was fair.
she started her employment just before the 6th of April 2012 i think on the 1st
ok that is fine in that case it is only a year's service she needs which she has
I understand the procedure allready
I asked if it is a good case for a court. Because the union seems to believe that because she was accused of theft, the court will reject this case. One more thing the union rep came in to the canteen later and asked for price of a fourth of a cup of milk and they were not able to produce him with an answer. The management said that the sugar and milk are a part of a drink and as such they are priced together with the drink.
or as a part of a drink or something like that
I think I gave you enough of details all I ask is will this be an automatic rejection because it is a theft or will this reach court and if so do I need my own solicitor for it or can I get one from court or something
simply is this a discrimination and unfair dismissal case to you or no?
the court will not just reject this because she was accused of theft, hey will still consider the claim like any other and as mentioned it is for the employer to justify that they had a fair reason for dismissal and that they followed a fair procedure
there is no simple case, it does not exist - this is for the employer to prove if their reasons were fair
i really depends on what evidence they can provide and how they defend the case
so then do you think they were fair enough?
is it worth a hassel
she is sick you know and dragging her trough courts is not an ideal option but she wants to get back at them for what they did to her
they seemed to ignore all the mitigating factors are they not reasonable enough ?
Unless a lawyer conducts a formal cases analysis, which you ill not get here and for which you have to pay a lot more, you will not be able to get prospects of success and even then there is always a risk in going to court. Also you have to pay fees now, you are looking at more than £1,000 to take this further
8 years of employment, no such history, thought it was for free, no pricing, canteen staff seen her but did not confront her, she did not take it of site, it is a small loss to the company, she is sick, ongoing witch hunt ????
do you think any solicitor would take it as no win no fee?
t=not many employment lawyers work on a no win no fee basis unfortunately, you can look around but it may not be easy to find one
this is really more for personal injury cases
I guess it is all I need to know.
can I represent myself
you can help with representation but it usually one or the other that has to do it, so either you or her. This is an organisation that may help, they represent for free:http://www.thefru.org.uk/
can you give me an honest answer does she have a chance??
it is not about having an honest answer, it is not having the FULL details to give such an answer and also not knowing what the employer's evidence is, so this could be completely misleading and this is not what I am here to do
well I told you the whole story they seen her do it they got it on cameras two manager seen her and the staff seen her she did it twice and one second time she took some sugar to the locker
that is all
they have nothing else
they have a policy on health and safety about the stacks disciplinary and no theft tolerance policy
please understand I don't want to trag her trough courts if there is no point
the whole story will not be what you have written I can assure you, you will not be able to have the full case in several pargraphs, this is just a summary, it is not the full story as such, so to tell you yes or no from this is impossible and I don't want t mislead you
well that a shame
thanks for the free legal advice rep thou and I guess it is all now
n worries, they are quite busy though so the earlier you contact them the better