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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 49819
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My restaurant manager was acting as Tronc master last ten

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My restaurant manager was acting as Tronc master for the last ten years.We have discovered that he has not declared any of the cash tips (paid direct from customers to waiters) to inland revenue and only declared the amount we give them back from the tips paid to direct to the company on credit cards.We therefore estimate that £50k per year has not been declared by him. This is based on some facts so it's an accurate estimate.It also turns out that he has not even distributed this cash amount to his colleagues. He has kept the majority of it.He has not kept proper records so the full extent of the problem is unknown.We investigated this issue after complaints made by some waiters about the manager/Tronc master.After questioning the manager he has gone on the sick due to stress.The problem is worsened by the fact that some of his family also work at the restaurant. Their attitude is shocking. Especially since a new Tronc master has been appointed who is now distributing the tips based on a fair and transparent point system.The attitude of the family is affecting trade as customers are picking up on it. We have lost some long term customers as they are missing the manager.We are going to report the matter to inland revenue for tax evasion.We are wondering if the company can launch civil proceedings against the manager to recoup the money he has taken unfairly.Are we taking the right approach?
Can we dismiss his family for trying to sabotage our business?
Can we dismiss the manager for gross misconduct?
Can we recoup the damages caused to our business because of the situation?

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Before I can look into this for you, please can you tell me how long has worked there for?

Customer: replied 1 year ago.
Thank you. He's been there 14 years and he's been the Tronc master since 2006.His son (assistant manager) has been there about 10 years. His son is acting manager but has become bitter and twisted and is a pain in the arse.

OK, thank you for your response. I will review the relevant information and laws and will get back to you in a short while. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Thank you. To answer your queries:

Are we taking the right approach?

Yes, this is a serious matter which needs to be dealt with as soon as possible. You have every right to treat this as a disciplinary matter and to report the matter to the IR and potentially the police (assuming he kept the tips himself).

Can we dismiss his family for trying to sabotage our business?

Try to treat each matter separately. By that I mean look at every individual’s conduct and determine how serious it is and how best to deal with it. So do not go and dismiss every one of his family members just because they are related to him and are retaliating as a result of what happened to him. So it is possible to potentially dismiss those people but you have to approach it carefully as they are protected against unfair dismissal and you must ensure you follow a fair procedure and also that the decision to dismiss was reasonable based on what they did.

Can we dismiss the manager for gross misconduct?

Most likely yes as what he did is a gross breach of trust. However, again he is protected against unfair dismissal so even if he is clearly guilty you must ensure a fair procedure has been followed.

Can we recoup the damages caused to our business because of the situation?

Potentially yes but that may not be easy. You could start a civil claim against him but he simply may not have the money to repay you and he could declare himself bankrupt for example. So think carefully, based on what you know about his financial position but in theory yes you may indeed pursue him for the money.

This is your basic legal position. I have more detailed advice for you in terms of the procedure you must follow to show that a dismissal was fair, 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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Ben. Thats a great response so far. Thanks.I forgot to mention that his son and one other waiter have both confirmed that the manager has no intention of ever coming back.It seems wrong that he can continue to claim sick pay.

Thank you. You can take action in his absence, especially if you believe that the reasons for the sickness are not genuine and are just a ploy to avoid having to return or to face any disciplinary action.

As far as the procedural requirements are 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.

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.