Employee theft - dismissal without evidence?

[Jane Doe]

Hi, I came across this forum when doing some research on my situation and was hoping for some advice. The story goes like this...

I am currently suspended from work for gross misconduct (suspicion of theft of company property) along with 2 other colleagues. I am being investigated because one of my colleagues had mentioned my name and told my manager that I was involved in the misconduct, for reasons I will not go into. I have and will always maintain that I was not at all involved but management have indicated that it is likely, following the disciplinary, I will be dismissed.

However, I know there is no direct evidence that shows my involvement in the theft and all that management have to go on is hearsay, in particular, the statements of two other colleagues.

Management have indicated that they actually suspect my other two colleagues of the theft and I am being investigated purely because my name was mentioned. They have also spoken to me "off the record" and said that they will not dismiss me if I give them the name of the guilty persons. Can they do this?

Also, I have handed in my resignation (without working out my notice period) and was not intending to attend my disciplinary hearing as I was under the impression that I cannot technically be dismissed if I had resigned. This is so any reference for future jobs will state that I have "resigned". However, upon further research I realised that they can still dismiss me and/or state that I "resigned during investigation" or something to that effect. Is this true?

I want to know whether I can be dismissed for gross misconduct based merely on suspicion and, at best, circumstantial evidence i.e. I had sent the goods out to be delivered unaware that it had been stolen from the warehouse - management could make out that I had knowledge of what was going on.

How much evidence is required for my employer to be able to dismiss me? I know the standard isn't as high as for a criminal offence.

Sorry it's so long-winded but I needed to set out the necessary details in order to obtain the best response.

Thanks in advance :)

[ABPM]

Hi
asking you to name someone else for a lesser penalty sounds like a strange approach to me. Thy can't know the outcome until they have followed a fair process, ther may in fact be insufficient evidence to do anything but get you back to work.....
Thier investigation will surely tease out anything relevant re other members of staff? They will need to follow a sound investigation & disciplinary process & make a judgement on what they find. They so not have to have prove 'beyond a resonable doubt' to dismiss but would need certainly to have soid grounds to do so depending on what they found in the investigation.

They can continue with the disciplinary process in your absence if you choose not to attend a sheduled meeting, they can do this whilst you are in your notice period too. They can also give a factual reference to the next employer & this might say left whilst under investigation, that is legal as it is factual.

[KateCB]

Agree with ABPM, however I have to say that I find it strange that you resigned, it could give your employer the wrong message - like guilty people running away?

Now, we know this isn't always the case, however had you NOT resigned, then if they HAD dismissed you based on hearsay and circumstantial evidence, you may have had a case for wrongful or unfair dismissal.

[jules12345]

Hi, I came across this forum when doing some research on my situation and was hoping for some advice. The story goes like this...

I am currently suspended from work for gross misconduct (suspicion of theft of company property) along with 2 other colleagues. I am being investigated because one of my colleagues had mentioned my name and told my manager that I was involved in the misconduct, for reasons I will not go into. I have and will always maintain that I was not at all involved but management have indicated that it is likely, following the disciplinary, I will be dismissed.

However, I know there is no direct evidence that shows my involvement in the theft and all that management have to go on is hearsay, in particular, the statements of two other colleagues.

Management have indicated that they actually suspect my other two colleagues of the theft and I am being investigated purely because my name was mentioned. They have also spoken to me "off the record" and said that they will not dismiss me if I give them the name of the guilty persons. Can they do this?

Also, I have handed in my resignation (without working out my notice period) and was not intending to attend my disciplinary hearing as I was under the impression that I cannot technically be dismissed if I had resigned. This is so any reference for future jobs will state that I have "resigned". However, upon further research I realised that they can still dismiss me and/or state that I "resigned during investigation" or something to that effect. Is this true?

I want to know whether I can be dismissed for gross misconduct based merely on suspicion and, at best, circumstantial evidence i.e. I had sent the goods out to be delivered unaware that it had been stolen from the warehouse - management could make out that I had knowledge of what was going on.

How much evidence is required for my employer to be able to dismiss me? I know the standard isn't as high as for a criminal offence.

Sorry it's so long-winded but I needed to set out the necessary details in order to obtain the best response.

Thanks in advance :)



Resignation can be seen as a dismissal in a 'constructive dismissal' case.

It seems (cant say without seeing the contract) that they are following A company procedure in investigating the episode, whether to the letter cant say.

I would say best wait for the investigation to run its course, but you have resigned, this makes things more complex.

As resignation can be seen as a dismissal, you may still have a claim for unfair dismissal if certain grounds are fulfilled, however as you resigned during the investigation that the company were undertaking to determine guilt, I would say you have made your sitaution far more complex than it needed to have been. Resignations in anger depending on wording may not be seen as resignations.

Were you receiving pay whilst on suspension...?

In regards to any advice, my advice would be to go back to them and take back your resignation, and tell them that you resigned in anger and that now you are willing to await the outcome of any investigation.

If your dismissed after the investigation then you may have a case depending on a number of things, predominantly guilt. In working for over a year you have fulfilled the time span necessary to make a claim for unfair dismissal.

Going on the wording of your managers, in regards to a constructive dismissal, and whilst under an investigation would be a difficult case IMHO. (Karl might be along shortly to clarify your legal position on this.)

Hope this helps...!

Regards
Jules

[YourLaw.co]

I would say that Jules has, more or less, got this right.

Your mistake was resigning, on what you have said I don't think that you would succeed in a constructive dismissal case - you jumped too soon!

If you can get the job back, with a short break, you could still have continuity of employment and then see the process through.

Francis

[Parthelan]

This might be of interest:



Cases have demonstrated how an employer may dismiss an employee merely on suspicion of a misconduct such as theft (Monie v Coral Racing Ltd and British Home Stores v Burchell). Hence, actual proof of an offence is required – if the employer can demonstrate a reasonable suspicion, that will prove sufficient.

· There may also exist situations where a group of employees may be considered to have been involved in misconduct. In cases where it is reasonable for the employer to assume that all or one of them were involved, yet following an investigation identification of the actual perpetrator(s) cannot be achieved, all of the group may be dismissed. See Parr v Whitbread).


Monie v Coral Racing Ltd (http://www.ukbusinessforums.co.uk/viewarticle.aspx?id=47711)
Source: Industrial Relations Law Reports Date: 01/12/1980
In Monie v Coral Racing Ltd [1980] IRLR 464 CA, the Court of Appeal held that where an employer reasonably believes that one of two, or possibly both, employees are involved in dishonesty, but it is impossible for it to determine which of them is guilty, it may be reasonable to dismiss both of them, as long as the employer acts reasonably in all the circumstances of the case.

http://www.xperthr.co.uk/employmentlaw/caselawarticle.aspx?caseid=2216

[jules12345]

I would say that Jules has, more or less, got this right.

Your mistake was resigning, on what you have said I don't think that you would succeed in a constructive dismissal case - you jumped too soon!

If you can get the job back, with a short break, you could still have continuity of employment and then see the process through.

Francis

I got something almost right ..... no seriously THANKYOU....!

looks for the smilie rubbing his shoulder/chest and blowing on his hand as if to say awesometopia (i saw the awesometopia word written somewhere else and it made me laugh with pain.)

You must have come from paradise

na awesometopia....! LMAO

[YourLaw.co]

Jules

Have you been drinking?

Francis

[MikeJ]

That would account for him getting something right.

[jules12345]

Jules

Have you been drinking?

Francis

Actually i did have a number of stellas last night lol

sorry

[Jane Doe]

Thank you all for your posts. You have all been very helpful.

To answer a few questions and clarify some points..

I resigned because my manager gave me a very strong hint that I would be dismissed following my disciplinary hearing so at the time I panicked and resigned because I did not want to risk having a bad reference. I assumed I was safe if I resigned before my employers had the opportunity to conduct the hearing, although now I know that my reference could still state that I "resigned pending investigation" which is just as bad as a reference stating that I was dismissed!

When I realised this was the case, I had thought of retracting my resignation but that would have made things a lot complicated than they already were. And my managers would probably have a field day coming up with all their conspiracy theories as to why.


This might be of interest:

In cases where it is reasonable for the employer to assume that all or one of them were involved, yet following an investigation identification of the actual perpetrator(s) cannot be achieved, all of the group may be dismissed. See Parr v Whitbread).

Source: Industrial Relations Law Reports Date: 01/12/1980
In Monie v Coral Racing Ltd [1980] IRLR 464 CA, the Court of Appeal held that where an employer reasonably believes that one of two, or possibly both, employees are involved in dishonesty, but it is impossible for it to determine which of them is guilty, it may be reasonable to dismiss both of them, as long as the employer acts reasonably in all the circumstances of the case.




Regarding this point of law, what is reasonable belief? Would hearsay and circumstantial evidence count as reasonable so as to justify a dismissal?

[obscure]

Regarding this point of law, what is reasonable belief? Would hearsay and circumstantial evidence count as reasonable so as to justify a dismissal?
Hearsay might not be reasonable but unfortunately what you describe in your original post doesn't sound like hearsay. Hearsay would normally be taken to be third hand information - meaning that person A says they heard person B say that they saw person C doing something wrong.

In your case it seems that Person A has said you (person C) were involved in the wrong doing. This may well be a lie but unfortunately your employer wont know that and may treat that as first hand evidence and give it more weight than third hand hearsay evidence.

[MDBJ]

Don't underestimate circumstantial evidence. It can be as damning as direct evidence and in some cases more so. Such as in circumstances where you are able to show that actions were taken that amounted to theft and that everyone, bar a single member of staff, was absent at the time. Although there is no direct evidence to show who was responsible there is ample evidence to show who it was not.

Case law has previously supported the dismissal of two members of staff who shared the responsible for the supervision of a safe. Cash disappeared and could only have been taken by one or other of the two. There was no evidence to show which one it was and both denied involvement. Both were dismissed and these were held to be lawful dismissals.

By the same token the dismissal of a member of staff for theft following an investigation was held to be lawful even though subsequent to their dismissal evidence came to light that exonnerated them.

The crucial elements in each of these cases were that "reasonable" investigations had been conducted and in each case the employer held a "reasonable" belief that the person concerned was responsible for the gross misconduct.