Employment tribunal

[NewUserHere]

Ok
I'm an employer in construction/engineering. We repaired a machine for a customer and the member of staff (final year trainee engineer who only started 6 months before) damaged it causing £350+vat worth of damage. He left the company with no notice causing losses as I was a member of staff in the unit down so if work was brought in we had less staff so they could go elsewhere if I couldn't fit it in. I want £2500+vat in losses of labour income and the £350 +vat for the damage. This is based on the fact I want 50% staff effeciency at £x/hr and therefore wasn't able to sell labour.

I took the money out of the employees wage and holiday and initial pay held, he still owed me £1350+vat which I was willing to write off.

He took me to court (employment tribunal), judge found in his favor as no contract allowed for such deductions. I wrote up a contract for the court with a copy of the welcome letter he received, but my welcome letter was different to his in a couple of respects so the judge found the contract was not what was given to the employee at start of employment.

So my question is:

• can I appeal and take witnesses with me this time? witness statements was disregarded. One was from the regional manager and said in the statement she was there at induction and saw the employee receive the contract.
  
  
• can I instead (as I was the respondent in the tribunal) sue the employee for my losses and the damage caused in the civil court? As they can consider damages whereas employment tribunal can only consider employment law? And will the ruling in the employment tribunal where I was the defendant affect my claim in a County court? As I can take the witnesses with me this time

 

[The Byre]

I am no HR expert, but as far as I am aware, the answers are (a) no and (b) yes.

(a) If an employee causes damage or loss in pursuance of his/her employment, that is the responsibility of the employer. The exceptions here include wilful damage and damage caused by gross negligence, such as operating machinery whilst drunk.

(b) After breaching an employment contract by walking out, an employee can be sued for damages caused by the early departure. The former employer would have to show financial loss flowing from this early departure.

An employer could also seek an injunction from the court which, if successful, could prevent the employee from working anywhere else until the end of his or her original notice period or longer under special circumstances, such as giving a new employer a competitive advantage.

I expect the HR gang will chime in here with more qualified advice!

 

[Hash and Bash]

Did the employee 'walk out' in response to your illegal deduction of wages?

 

[billmccallum1957]

From https://www.gov.uk/understanding-your-pay/deductions-from-your-pay

5. Deductions from your pay
Your employer isn’t allowed to make deductions unless:

• it’s required or allowed by law, eg National Insurance, income tax or student loan repayments
• you agree in writing
• your contract says they can
• there’s a statutory payment due to a public authority
• you haven’t worked due to taking part in a strike or industrial action
• there’s been an earlier overpayment of wages or expenses
• it’s a result of a court order

I would suspect that the effect of making deductions that you want would mean the employee would earn less than the minimum wage.

 

[Jeff FV]

... also, employers can't have it both ways ...

He was only employed by you for 6 months so you were not obliged to keep him in employment, but similarly he was not obliged to remain in employment with you.

What did his contract say regarding notice period?

A trainee engineer damaged the equipment - what levels of supervision was the trainee be given?

Pay the lad what he's owed and move on. Any other course of action will cost you more in money, time and stress.

 

[soundengineeruk]

Not an HR expert, but what is the cost of appealing and going for it to what you are going to pay him..

Yes, there is the principal of the what has gone on, but also the finance aspect of it..

However, if no contract was provided to him at the start of his employment then I think you will best wasting your time..

 

[NewUserHere]

He disputed causing the damage and walked out when he was told he was liable and if he didn't make payment it would be deducted from his wage

 

[Hash and Bash]

In that case the employee probably could claim constructive dismissal.

 

[Mr A P Davies]

Errr, so lets get this right a minute.
You've stood in front of a Judge, and declared that this guy was good enough that him walking out, plus the damage he may or may not have done, is worth somewhere in the region of Three grand?

He can't have been a bad fella then, can he?

And you've mishandles the situation so badly that he's walked out, over £350 worth of damage, that he may not have even caused?
Lets face it, it's not difficult to crack a window in a machine, drive over a disk cutter, or put a scratch in some paintwork, is it?

I'd say, the questions you ought to be asking, is what should I do, not what can I do.

Ever heard the expression, careful who you cross on the way up, coz you never know when you might meet them on the way back down?

 

[billmccallum1957]

From a purely financial aspect, I would say learn from this, get over it and move on with your business.

From a personal viewpoint, you expect your employees to pay for damages caused by accident or inexperience (this was a trainee), I would say its an unfair contract.

 

[Charlie B ACS]

He took me to court (employment tribunal), judge found in his favor as no contract allowed for such deductions. I wrote up a contract for the court with a copy of the welcome letter he received, but my welcome letter was different to his in a couple of respects so the judge found the contract was not what was given to the employee at start of employment.

Is it just me that is perplexed by this statement? What happened to the contract your employee signed?

 

[soundengineeruk]

Is it just me that is perplexed by this statement? What happened to the contract your employee signed?

If the employee never received the contract before taking first step in to the job, then the employee will have a case; hence deciding factor to rule in favour of the employee..

 

[john1989]

If an apprentice causes damage, you have to ask yourself why they were not properly supervised.


Accidents happen in the workplace. You can’t write backdated policies whenever you see fit. Get proper policies in place and enforce them.


I think deducting an apprentices wage for damages is just asking for trouble. Either give the apprentice adequate supervision or employ someone fully qualified to carry out the work alone.


On the information presented, I can only foresee a similar result in the smalls claim court.


You seem to have handled this very badly. Pay the lad what’s due and move on.

 

[The Byre]

He took me to court (employment tribunal), judge found in his favor as no contract allowed for such deductions. I wrote up a contract for the court with a copy of the welcome letter he received, but my welcome letter was different to his in a couple of respects so the judge found the contract was not what was given to the employee at start of employment.

You cannot sue for damages, resulting from his not adhering to a notice period, if you do not have a contract for that notice period that is signed by the employee. The court found that in all probability, you invented such a contract after the event and reading what you have written, I am inclined to agree with them.

The fact that you do not know that damages caused by an employee in the normal course of his/her employment are your responsibility and yours alone and that you have absolutely no right to withhold money for anything from an employee's wages, other than specific types of deductions as laid down by UK employment law (e.g. court orders, NI, income tax, previous over-payment) suggests to me that you are not a fit person to be an employer and that you urgently need help implementing your duties and rights as an employer from an HR professional.

You cannot make up employment law to your own advantage as you go along. Failure to get some professional advice could one day land you in some very hot water indeed.