Dismissal for Gross Misconduct (Theft)

JReacher1

prowla said:

According to the Government (https://www.gov.uk/dismiss-staff/dismissals-on-capability-or-conduct-grounds ), the employer should:

With gross misconduct, you can dismiss the employee immediately as long as you follow a fair procedure. You should investigate the incident and give the employee a chance to respond before deciding to dismiss them.

I would suggest that, according to the anecdotal evidence in the OP, the incident was investigated and the employee was given the chance to respond, which they did by admitting the theft.

That’s interesting and seems to answer the OP’s question. 

Dakta

JReacher1 said:

Undervalued said:

Dakta said:

I actually think this is an interesting question, and I echo some of goaters thoughts here.

If he's guilty, and has admitted it - his job is pretty much gone and there will be little recourse, that's a given - however there is a valid question about process here, and I'm not sure of the answer.

I would have thought, if suspected of theft - you would be suspended (with immediate effect) taken from the premises. If the person admits to it then there is no real need for an investigation and a disciplinary should be straightforward. This will give the company the chance to document the case, give the employee a chance to respond, defend their case/provide a mitigation and then be dismissed instantly if appropriate.

By doing it the way this company seems to have, is they've gone straight to instant dismissal (notice I'm not calling it summary dismissal as this would normally be instant and without notice following a disciplinary, where this is instant without a disciplinary). This seems to prevent the employee the time to review the allegations, the evidence against him and therefore hasn't had much opportunity or time to put forth their own side or arguments,

This for me is the sticky point, because most sources I can find caveat instant dismissal as 'instant after following a fair investigation and going through the disciplinary process' - if gross misconduct is found then dismissal can be instant. Is there any situation where evidence can be considered strong enough to be able to prevent an employee from putting their own case forward? 

I'm not totally sure here but my gut feel is that the company has put itself in a grey, and potentially risky area by doing this the way it has.

 

Then I would refer you to the post I made at around 9am yesterday morning (page one, about the 8th or 9th post in this thread) which answers your question.

It only answers their question if they believe what you have posted. Despite a clever use of the bold feature there is no evidence or links to back up what you have stated. As such it is just your opinion 😉

It’s very dangerous for people to take at face value information posted on a forum that doesn’t have any links or evidence to provide confirmation this information is correct. 

This was line of thought really, I was hoping to find something official - and whilst I've searched and there's loads of posts from HR and solicitors etc I seem to hit a brickwall with the concept of instant dismissal - many seem to refer to it in the context of having run a disciplinary, others seem to expect for the process to be fair the disciplinary process to have been run through in context of the companies own discipline policy - in which case a question could be does the policy allow for this.

It's an interesting one, I don't mind being wrong but it's worth discussing as I think this is the point the OP was getting at (not was my friend wrong or deserve to be punished)

Also I am  a bit biased because I've been quoted in the past when offering help for asking for help myself, in which case I received advice which had I followed Id be 4 figures per annum lighter - so it definitely pays to be critical. 

Dakta

I am just reading through tribunal notes for a case, whilst full of legal jargon the tribunal sided with the employee.

The tribunal acknowledges the reason for wanting to dismiss was fair, and also acknowledges that had a fair process being followed, then dismissal would have been likely (and again fair). What wasn't fair was the fact the dismissal occurred without a disciplinary or chance of appeal, though because the outcome was certain (had a fair process been followed) the reward was pretty low - around £900.

I suppose the question then - in that case at least, would it be easier to find a job having to admit being sacked if you can say the process was proved to be unfair. Maybe - maybe not. You can also argue it gave little award so may not have been worth it, this is going to be subjective but does show you can be in the wrong and be mistreated and that this is more complex than just 'you did something wrong and got fired, just accept it'. Very interesting topic. 

Undervalued

Dakta said:

I am just reading through tribunal notes for a case, whilst full of legal jargon the tribunal sided with the employee.

The tribunal acknowledges the reason for wanting to dismiss was fair, and also acknowledges that had a fair process being followed, then dismissal would have been likely (and again fair). What wasn't fair was the fact the dismissal occurred without a disciplinary or chance of appeal, though because the outcome was certain (had a fair process been followed) the reward was pretty low - around £900.

I suppose the question then - in that case at least, would it be easier to find a job having to admit being sacked if you can say the process was proved to be unfair. Maybe - maybe not. You can also argue it gave little award so may not have been worth it, this is going to be subjective but does show you can be in the wrong and be mistreated and that this is more complex than just 'you did something wrong and got fired, just accept it'. Very interesting topic. 

Which almost certainly reflected lost wages for maybe a week's suspension whilst due process was followed.

Also, when was this ruling? The law in this area has changed in the not too distant past plus the accepted interpretation evolves over time.

Remember too that an employment tribunal decision (just like the county court) does not set a binding precedent. That only happens at appeal.

Dakta

June 2022 in the one i'm referencing - am going to have a look through others when I get time as it's interesting and be interesting to see if there's much in way of consistency (I'll admit to having found this through a keyword search, so is likely to be giving me just what I want to see)

I can understand the 'chalk it up to experience' sort of viewpoint, a weeks wages isn't much, but at the same time it's not really for me to put a value on a weeks wage to someone or be able to say they tested it at EAT and an independent ruling found the process unfair  - even if not a) we learn something from this and b) we can make better informed decisions and c) you might actually once in a while catch something worth catching that you might otherwise have accepted 

timstyles

Whilst there is the potential for the dismissal to be procedurally unfair because the correct process has not been followed, he will undoubtedly receive nil compensation from an employment tribunal should he make a claim for unfair dismissal (Polkey v AE Dayton Services Ltd). More likely, he will end up with a costs Order against him!

Dakta

That's one of the fair aspects to consider - I say consider because that specific case did get a mention in the one I looked at and the award was reduced, but not zeroed.

Definitely something to consider in this scenario - at least we're discussing it now a blanket just accept it isn't good help.

GenieBoy

What was he pinching that made it worth while to sell on?

MattMattMattUK

goater78 said:

MattMattMattUK said:

goater78 said:

It does seem a bit strange to sack them straight away. Would have thought he would have been instantly suspended and removed from the site and then sacked for gross misconduct within days via a fast tracked disciplinary procedure. 

Summary dismissal for gross misconduct with overwhelming evidence and an admission of guilt means there is not need for a fast tracked disciplinary procedure, it could be written up in half an hour before you throw them off the premises. 

It took a week after being found guilty for Wayne Couzans to be sacked for gross misconduct so it can’t be that easy. 

There are contractual obligations and process that the police are required to follow, including time for legal and union representation, very different to a warehouse/retail job.

TBagpuss

As above, it's likely that the company did follow a fair process - they gave him the chance to respond and he admitted the thefts.
Also, as this is  friend, not yourself, you don't know whether he is telling you the whole story. 

(I've only ever had dealings with one situation where an employee was sacked for gross misconduct. In that case, they were notified in writing by email in the afternoon of the disciplinary issue, and  given the opportunity to have a colleague with them, the meeting tool place first thing the following morning and they were dismissed and escorted from the premises having admitted to the incident resulting in their being sacked. It took less than 24 hours. And most of the delay was the employer taking advice before going ahead, in order to be 100% sure that everything was being done correctly. Without that it would have been possible to have notified them in the morning and dealt with the meeting that afternoon)

In your friend's case, it's possible that they could argue that the correct process wasn't followed, if they weren't given any notice or weren't told of the right to have someone with them, but it's likely that that would only mean that they might be entitled to a day's pay or half a day's pay if that's how long arranging that may have taken.  However, given that he admitted to the thefts, and sacking someone for theft is clearly fair and equally clearly gross misconduct, a delay even of a day would not have made any difference to the outcome. 
I agree with those saying you probably need to distance yourself from him - you don't want your employers to associate you with him or to start wondering whether you were involved with his thefts as well.