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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61658
Experience:  Qualified Employment Solicitor
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I have a situation regarding an ex-employee who we agreed a

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Hey Pearl.I have a situation regarding an ex-employee who we agreed a redundancy package with but then right towards the end of their term with us found them to be in breach of their employment contract on multiple counts of gross misconduct including fraud, diversion of company funds amongst many other charges (over 50 and growing).Their actions and that of the sales director he worked directly under have left the company on the verge of bankruptcy but we are fighting to recover the money and have been building a civil and criminal case and taking legal advice since we discovered the wrong doing. We have also informed the police but are waiting until we have finished collating the evidence before we proceed.He is now threatening us with tribunal action for his redundancy. I would like him to proceed and have the chance to stand in a tribunal and explain some of the reasons as to why we are withholding his redundancy in the hope that common sense would prevail, but as you know law doesn’t always work like that.For the record we have never told him that we would not be paying his redundancy, just that until the investigation is finished and that the company accounts have been finalised, or that it could be proved that he had no direct involvement (which he can’t) we would not be paying the redundancy. He has lied to us on multiple occasions in two informal meetings about some of the activities that have gone on.we have not shown our full hand yet in terms of the evidence as we do not want either him, or the director (his partner in crime) to be aware and to be able move any assets before they are served.So my question is, would an employment tribunal take any of the this into account. We did not follow the normal procedure in terms of dismissal as he had already practically left when we started to discover the discrepancies in the accounts and became aware of the many actions that had been detrimental to the company and which he had been complicit in.Advise greatly appreciated. I would love to believe that there is some level of protection for a small business employer.Many ThanksSimon
JA: Have you discussed the employment contract issue with a manager or HR? Or with a lawyer?
Customer: Not yet... we have been so deeply involved in the investigation and only been focusing on the criminal and civil aspects, and with the forensic accounting of the business
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: I am the creative director of the company
JA: Anything else you want the Lawyer to know before I connect you?
Customer: other than i've been royally screwed by this ex-employee

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Had his employment officially terminated by the time you started investigating and dealing with the new issues?

 

Customer: replied 9 days ago.
No. We discovered issues in mid September but didn’t know how much he was involved so had two informal meetings with him to ask him about his involvement and awareness of the Issues. He denied knowledge so we gave him the benefit out of the doubt but kept investigating. Over the following 6 weeks we found increasing amounts of evidence and have been trying to recover all his deleted emails.
Customer: replied 9 days ago.
I’m not paying 48 quid to speak to you mate. I need some basic advise which I believed you could provide through this service. There was never a mention of further charges.

However if you can guarantee me a complete and full answer to my question I will pay you the money. I cannot call from this phone though as I am currently working in Mumbai and calls cost £1.50 per minute. Are you able to talk on what’s app?

Don’t worry about the pop-up mentioning a phone call – this is an automatic offer made by the system, giving you the opportunity to pay extra to discuss things over the phone. However, it is entirely optional and if you just ignore it and close it down you will not be charged extra and we will just continue in writing at no extra cost.

Customer: replied 9 days ago.
Ahhh okay. Brilliant. Already been fleeced to the point of bankruptcy. Really just looking for some help

Going back to your query, regardless of the fact you had informed him he will be made redundant that can change at any time whilst he is still employed. In particular, if evidence or gross misconduct has come out, you can pursue this under your disciplinary procedure and even dismiss him with immediate effect on gross misconduct grounds before the redundancy notice was due to expire. As that gross misconduct dismissal would take priority, it would mean he gets no redundancy and no notice pay either.

 

The main thing is to ensure that a fair procedure is followed and that you do not rush it unnecessarily just to finalise it before his notice expires. Investigate it properly, go through the required meetings and as long as a fair procedure is followed and you have grounds to dismiss, you may do so, even if he initially was told he will be made redundant.

 

Does this answer your query?

Customer: replied 8 days ago.
Hey Ben. Okay... the employee in question choose voluntary redundancy at the end of June and we agreed that he would work until the end of September. On September the 17th the director he was working directly under deleted 27,000 emails. We found this to be suspicious so worked to recover those emails. Once recovered we found evidence of various acts of illegal activity including fraud and multiple cases of diversion of business to another company which the employee had part time work with.

The employee was clearly complicit in many of these acts so we froze everyone’s emails in order to prevent anything else from being deleted. We then held too informal meetings with the employee asking him of his knowledge about some of the events that had taken place just before the end of his employment term. He claimed to have no knowledge of the matters although admitted to setting up a company, and being the director of the company through which some business and money had been rediverted through, however, he claimed it was without his knowledge and the director he had worked so closely under (who is also his best mate) must have been responsible. We gave him the benefit of the doubt but told him we would be withholding his redundancy until further investigations had taken place and he could exonerated. Since that time (after his employment term finished) we have found him to be complicit and involved in a huge number of acts of gross misconduct that have been extremely detrimental to the business. We are still investigating the case and collating more evidence and have just recovered over 1/2 million emails going back to 2015 which is when we believe the first crimes and acts of gross misconduct were committed.

We have been in talks with the police, legal advisors and liquidators and at this very moment are trying to discover the full extent of the crimes and acts of gross misconduct.

The employee has now threatened us with an employment tribunal for his unpaid redundancy and even talking about claiming unfair dismissal which is just sickening. We have never said we will not pay his redundancy but stated that

1. The company is not in a financial position at this time due to the criminal activities have taken place. This is true, we are practically involvement.
2. That he would be paid once money had been recovered and if he was found to not be guilty… which now, especially over the last few days we 100% know him to be

He is still unaware of the scale of evidence we have against him as we do not want him to make the director aware of what we know and who will most certainly be facing civil and criminal proceedings and will very likely immediately transfer all his assets as soon as he knows how much trouble he is in.

What I really want to know is if this did go to an employment tribunal would these circumstances be taken into account?.

The concept of paying an employee redundancy who has assisted in the diversion of so much money, has completely abused our trust and broken so many terms of his employment contract seems more than unjust. He would have instantly been dismissed had we discovered this evidence earlier.

Is there a procedure we could follow now?. We were thinking that we could arrange a meeting with him and present him with a selection of the evidence which if any fair or sane person were to see would clearly show him to be guilty and that then he may drop his charade.

I hope that explains the situation well enough for you to be able to advice accordingly.

I would be more than happy to stand in court as long as our side can be heard. You would hope that any tribunal would see that due to the historical acts of gross misconduct it is only right his redundancy be withheld, at least until the point that the investigation is finished, despite the already existing evidence.

I did find this article and am hoping the same would apply
https://www.crosslandsolicitors.com/site/crossland_news/williams_leeds_gross_misconduct_2015_html

I look forward to your reply

Hi, the case is a useful one but as you will find, it is very fact-specific, meaning that it relied on its own unique facts to come to that decision and just because you have a similar case, it does not mean it has the same facts, especially as the employment had already ended in your case. I’m afraid it is one of those situations where only a court can decide the actual position and if it is applicable.

 

I wouldn’t worry too much about unfair dismissal as that is unlikely but he may still try and go after the redundancy pay. Having a meeting and outing the facts to him could prompt him to avid considering legal action, especially as the stakes are much higher for him than they are for you. However, there is no guarantee it will make a difference because in the end the decision is his to take

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you

Hello, not sure if you are having trouble seeing my posts? I have not heard back from you since posting my answer and just need to know if your query has been resolved. If you could please post a quick reply to confirm I would be very grateful. Thank you

Customer: replied 5 days ago.
Hey Ben... sorry been in the mountains over the weekend so had no internet. Okay so my last question... does the process of an employment tribunal over the withholding of redundancy allow for evidence to be heard or presented from the employer as to why redundancy has been held?

Hi no problem and thanks. Yes the tribunal process will hear from both sides and you will each have the opportunity to provide whatever evidence you believe is relevant to the case. Does this clarify things a bit more for you?

Customer: replied 5 days ago.
yeah thats great... thanks Ben... appreciate your time x

All the best

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