My dd (aged 20) has been accused of stealing at her work

[Idontknowhowtohelpher]

I posted this in the legal section here at the weekend and have received some good advice about her contacting ACAS. It was reccommended that I post here as well. Unfortunately I have to go out to work and won't be able to check replies until this evening but would be very grateful for any further advice.

My dd (aged 20) has been accused of stealing at the shop she works in. She has been suspended on full pay for four weeks and got a letter on Saturday telling her a date has been set for a formal hearing on Thursday. There was a short interview on the day of the incident and she was asked to come in a week later to answer further questions. Notes were made at each of these meetings which she saw, agreed and signed but she has not been given copies.

She has not been told who made the original allegation and got no answer when she asked about CCTV coverage. She is not in a union. She took a workmate of her own age to the second interview and is trying to arrange for her to be available for Thursday.

She assures me categorically that she has not committed any theft, and there has never been any previous concerns about her honesty. She works part time and has been there two years.

I think she has been burying her head in the sand and hoping it will all go away but suddenly it really is happening. Is there anything I can suggest to help her? Anywhere she can go for advice? Find out her rights and the best way to get this over?
I know its a stupid time to be posting but I can't sleep with worry. Any help would be really appreciated.

[flowerybeanbag]

First of all just to make you aware in case you are not already, that the 'burden of proof' in terms of employment law, for disciplining or dismissing someone, isn't as strict as for a criminal accusation. So in a criminal court, someone's guilt has to be proved 'beyond all reasonable doubt'. It would be unusual not to involve the police for theft but it may be because they know they don't have enough evidence for a criminal prosecution. In employment law, for dismissing someone, it's more about the balance of probability and being 'reasonable'.

Of course, that doesn't mean they can sack her without evidence, and the type of thing they'd need is CCTV as you mention, details of a till not balancing at the end of the day with a reasonable belief that your DD was the person with access to the till, or a witness statement from someone saying they saw her.

Have they provided anything like this, any evidence at all, or is it just 'someone says', without any evidence? That's quite important, in a disciplinary hearing the idea is that she needs to be in a position where she can reasonably defend herself, and she can't do that without knowing the substance of the evidence they are using. I'm assuming as she's had a couple of interviews already they've been able to provide her with some details about why they believe she may have been stealing?

You mention that CCTV coverage has not yet been provided. Does she know that there definitely would be some? I mean does she know that there is a camera trained on the till switched on recording all the time. Or does she not know that but is asking if there is?

I see you've spoken to ACAS, you could also have a read of their code of practice for disciplinaries, to see the kind of principles your DD's employer should be following.

I hope she has been given enough information to be able to defend herself adequately. If anything is raised in the hearing that she doesn't know about, or is not able to answer, any new evidence or new allegations, she shouldn't be afraid to state that she is not in a position to respond and ask for the hearing to be adjourned in order to allow her to consider her response.

[Idontknowhowtohelpher]

Thank you for replying. She hasn't been given anything in writing. It is a bit more complicated than I have written - and I can't give more details as it becomes much too easily identifiable then. She did tell the whole story in confidence to the ACAS adviser.
The other difficulty (for me) is that as she is an adult she is expected to deal with this herself. I have never felt so helpless.

[flowerybeanbag]

Well you are helping her, don't worry. You can't deal with it for her as you know, but you are helping by getting yourself and her fully informed of her rights.

You will see from page 5 of the Code of Practice I linked to, in the section about 'inform the employee', that one of the very important principles is that the employee is given written notification both of the disciplinary hearing and also enough details, including evidence, to enable them to prepare a defence.

If she's not had anything in writing yet I would suggest she refuses to attend a disciplinary hearing unless and until she receives adequate information in writing with a reasonable timescale for her to read and understand it and prepare a suitable defence.

[Idontknowhowtohelpher]

Thank you. I have emailed this thread to her.

[Idontknowhowtohelpher]

The disciplinary hearing was adjourned for further investigation. dd is pretty pissed off with the whole thing but said that she felt that reading these threads had helped shaped how she voiced things in the hearing. Thanks again for the help.

[Idontknowhowtohelpher]

The disciplinary hearing was continued on Thursday. After a short recess she was told she is being dismissed for gross misconduct and would be getting this in writing soon. She was devastated, but intends to appeal. I feel so sorry for her as I totally believe her when she says that she did not do what she is accused of.
Any advice would be most welcome.

[Idontknowhowtohelpher]

BUMP

[Idontknowhowtohelpher]

Anyone around who could help? I feel a bit invisible here.

[TheDailyWail]

I know this is a very frustrating time for you. Has she stated that she would like to appeal against it with her employer?

[Idontknowhowtohelpher]

Thanks for replying. Yes, she has said to me that she is planning to appeal. She was told that a letter confirming the dismissal would be sent to her telling her how she can appeal. That was last Thursday and she hasn't heard anything yet.

[YorkshireRose]

That letter seems to be taking a long time to come through as she has already been told what the decision was - could it have been held up in the post? I think it might be a good idea to contact the company and chase it up. Don't leave it too long or you may miss the deadline for lodging an appeal - it is usually only a few days after dismissal.

Lodging an appeal isn't complicated though, just need to state your wish to appeal and give general grounds for the appeal - e.g. decision made was not supported by the evidence, sanction applied was too onerous, or to submit new evidence not available at the disciplinary hearing. meke sure you also state that you want a re-hearing of the original disciplinary. The company will then contact you with an appeal hearing date. They should make this date as soon as is practically possible. You then need to submit copies of any new evidence you intend to use to the company before the meeting but if not appealing on the basis of new evidence you do not need to submit anything further. The appeal should be chaired by someone who was not involved in the original disciplinary hearing and they should consider all the evidence again and listen to any new evidence and statements from you. And make sure your daughter takes advantage of her right to be accompanied - if nothing else the companion is a witness to anything that goes on in the meeting. The company HAVE to accept a colleague or union rep, but she CAN request any other person and the company would have to have a good reason to turn this request down (but will usually not accept family/spouses/boyfriends or solicitors)

Good luck and lots of hugs to your daughter at this very stressful time.

p.s. Have you spoken to a solicitor? If you can't afford fees, try a no win no fee solicitor or CAB.

[Idontknowhowtohelpher]

Thank you for your comments. We can't afford a solicitor but CAB is a good idea. According to her staff handbook she has 14 days from the date that she receives confirmation in writing of the outcome of the disciplinary hearing. I will suggest she contacts the company and chases up the letter.

[LoveBeingAMummy]

Hi

FYI flowery has just had a baby so she might not be round much.

When I've done dismissals its always been from the date letter received and I've always sent them special delivery

No harm in chasing but to give you an idea of why its taking so long it could be just that the person who is typing up the minuites is doing this in addition to their normal job so can be a big job. Also HR would ahve to sign off our letter plus all those present have to sign the mintes. Add onto that the postal strike and its not suprising she hasn't had them.

If it were me I wojuld chase if not recieved during Fri's post.

In the mean time she can start to prepare her case for appeal. I imagine its not a good idea to be too specific on here but if we an help just type away!

Oh its also a good idea for your DD to think about what she wants to achieve, does she want to back and work there? does she want an apology and a decent reference?

IME it has been very unusual for a decision to be reversed however if i were her i would be doing the same! good luck

[YorkshireRose]

Yes the decision will probably not be overturned - companies have usually made up their minds by this stage and no-one will be keen to overturn the decision. However, as your daughter is adamant she has been wrongly accused she will probably want to bring a tribunal case for wrongful dismissal and you need to go through the full appeals procedure to be able to bring a case. If the company do not comply fully with recommended ACAS procedures for fair hearings she will have a good case. She does not need to use a solicitor but should speak to CAB to get some advice - may be able to get some free legal advice through them.

I know it will probably seem daunting to your daughter to take on the company but having a false accusation of stealing on her record is really serious and she cannot afford to let it go.

[Idontknowhowtohelpher]

Thank you for your replies. dd went to CAB today but their legal person is only there on Tuesdays with no appointment system so she intends to go back next week.
LoveBeingAMummy - I asked dd what she wants to achieve. She is so pissed off with them that she certainly does not want to go back and work there - but she does want her name cleared, a decent reference and an apology would be nice.

I think that the decision made was not supported by the evidence, which seems very flimsy and one person's word against anothers. They also ignored some relevant information that she took to the meeting. So that is why she will aappeal. However, as well as that, the company did not comply fully with recommended ACAS procedures for fair hearings - but I don't know if that comes up as part of the appeal, or if that waits for a tribunal case (if she loses the appeal)

[YorkshireRose]

She should include all those points in her appeal - decision not supported by the evidence and failure to follow proper procedures. If, as will probably realistically happen, the appeal hearing fails to overturn the decision she will have further grounds for bringing a tribunal case for unfair dismissal. Plus if the appeal hearing fails to follow proper procedures will have further grounds for unfair dismissal case.

Hopefully once the tribunal case in brought the company will see sense and settle out of court - she should make sure that an agreed standard reference is included in the settlement as well as compensation for loss of earnings. However don't expect an apology - these settlements are usually made without admission of fault.

[LoveBeingAMummy]

My understanding from a very high up union chap, works with gb and in europe a lot, is that most tribunal cases get won because the company has failed to follow its own process so make she your dd is clear on that one, altough whether it would be better to ignore that part until/if tribunal i can't say.

When you say they ignored info she presented at the meeting, in what way did they ignore?

[Idontknowhowtohelpher]

Thanks again for your replies. She is not really bothered about an apology - she says she knows it wouldn't be sincere so there would be no point to it.
She took some info to the hearing which was then adjourned for further investigation. When they restarted they made no reference to the info she had taken but told her of new evidence they said they had, though there was nothing in writing. She was very shocked as she felt the new evidence was completely impossible (I'm sorry, this sounds so vague but it would be very identifiable if I gave more detail.) While she was still trying to take in what was said they had a short recess and then she was told she was being dismissed for gross misconduct, which reduced her to tears and she left.
She is determined to appeal, and go to an industrial tribunal if that fails. She is angry as well as upset and says that they have no right to make this unjustified blackmark on her employment history.

Leading on from this, in the meantime she has got a job interview in a similar field. How does she phrase the answer to the question "Why did you leave your last job?"

[LoveBeingAMummy]

I am understanding this correctly, they gave new info that she had not ben advised of before?

[Idontknowhowtohelpher]

Yes, that's right. Completely new "evidence" that had never been mentioned before, that to her knowledge could not possibly be true, but that was rather distressing to hear.

[YorkshireRose]

All the evidence that her employer intended to use in the disciplinary hearing should have been supplied to her prior to the hearing so she could prepare a defence. It is totally against ACAS guidelines to spring new evidence on her like this and not allow her time to consider a response before making a decision. The process was therefore unfair and she has grounds for claiming unfair dismissal. This applies whether or not the evidence was valid or not, she simply did not get chance to defend herslf and therefore her dismissal is unfair. This should form part of her appeal.

[YorkshireRose]

btw, I am not a legal person, but I am going through a similar process myself and this is the advice I have had from my solicitor.

[LoveBeingAMummy]

yorkshie, that is my understanding too.

they have failed to follow one of the most basic rights your dd has, to be able to prepare a defence, by failing to share info, (I imagine for the suprise factor?) they have buggered the whole thing from their prospective and she has grounds to tkae this further.

She needs proper advice on how to take this forward.

Not following the disciplinary and dismissal principles

[YorkshireRose]

Yes that's right LBAM - and this surprise attack approach is specifically not allowed by the ACAS rules.

[LoveBeingAMummy]

I'm suprised that people still try it on tbh.