Essay: Legal Advice For Employee Theft & Maternity Leave In Employment Law.

Adam owns a small cafeteria in central London and he employs a number of part-time staff who wait on tables and work behind the counter. In the last two months, he realised that the takings each day do not match with the receipts and he is short by a few hundred pounds. All the staff members have access to the till and work behind the counter on a rotation basis.
During a general meeting, Adam mentioned to all his staff that some money is missing. After the meeting, Adam started to suspect Jane who appeared quite agitated when he explained the situation. Furthermore, another member of staff, Hillary, told Adam that she saw Jane acting suspiciously recently when she was ringing an order into the till, but she did not provide further details.
Adam asked Jane to meet him in his office the following day and told her that he wanted to talk to her about the missing money. Jane had become very agitated when Adam said this. She has now come back to Adam and told him that she is pregnant and she will need to take maternity leave in a few months.
Adam does not know what to do. On the one side, he would like to deal with the issue of the missing money and, if Jane has been stealing it, dismiss her. On the other side, he has heard so many stories about pregnant employees suing their employers when they have been dismissed and he is concerned that he has no actual proof of her guilt.
By referring to relevant legislation and case law in the area of employment law, write a letter of legal advice to Adam about what to do in the scenario described above.

Adam runs a small cafeteria where he employs part-time staff members. In last two months,he realized that the value of collected money was not in accordance with the receipts. Adam mentioned about his concern in a general meeting to all the staff members and starts suspecting Jane who seemed stressedwhen he explained about the situation. In addition, another employee Hillary told Adam that she saw Jane acting suspiciously while ringing order into the cashbox however,  she did not provide any details. Adam does not know what to do because when he called Jane in his office and asked her about the missing money, Jane became seriously depressed. She came back and asked  him to grant her the  maternity leave within few months. Adam is confused because he wants to resolve the issue of missing moneyand if Jane has stolen, he wants to dismiss her but, he has the fear of getting sued by Jane for dismissing her when she is pregnant. Furthermore, he is also concerned that he has no proof for claiming that she is responsible for stealing.

Equality Act 2010- It protects the employees from unlawful discrimination because of pregnancy or maternity. IT provides the right to the employees feeling discrimination to make claim to the employment tribunal or employment appeals tribunal (ACAS, 2018).

Employment Law- The law also provides the right to the employees not to be treated unfavorably because they are pregnant or on maternity leave and if they feel so, they should try to resolve the issue informally and if does not work, formal complaint in writing should be made and the last resort is the employment tribunal where, the complaint can be lodged against the employer for unfavorable discrimination (ACAS, 2018).

I am here to inform you about the best possible ways you can apply to handle this situation. The ACAS Code of Practice provides practical guidance for the purpose of handling disciplinary and grievance issues in the workplace. This Code of Practice include consideration by the employer and the employees to resolve disciplinary and grievance issues within the workplace (ACAS, 2015). Various potential disciplinary or grievance issues can usually be resolved informally such as minor misconduct or unsatisfactory performance with the effective use of this Code of Practice. It will help you to deal with the issues fairly, consistently and promptly and investigations can easily be made to gather all the facts of case (UK Government, 2018). In ACAS, there are stepwise proceduresto conduct workplace investigations.

As it considers the organizational preparation for the investigation to take place, the rules should be followed by you along with precise investigation and if you prefer, you can also choose a suitable investigator for investigating the matter.The policies and procedures existing within the organization should be taken into considerationin order to conduct formal investigation of the issue (UK Government, 2018). However, if the policy does not have aclearapproach regarding such an issue, an investigation should still be conducted depending upon the seriousness of the issue as it is a matter of theft.  

Legal Advice

 In this case, you should decide whether the investigation of the case is necessary or not.  As he wants to resolve the issue of missing money, he should establish the rules to be followed during investigation and should select a suitable investigator who must not be biased towards any of the party (UK Government , 2018).You should try to resolve the issue through preliminary investigation if possible by gathering evidences and, if evidences go against Jane, then you will have the legitimate reason to dismiss her from the job. ACAS considers informal approach for resolution of the issue to be as the most  suitable option at any stage of the process. The clarity in the terms of reference is essential as it assists in completing the investigation on time, clarifies the exact remittance of the investigator, and reduces disruption to the daily business requirements of the organization (Citizens Advice, 2018). You should keep it in mind that the matter remains confidential as you have already discussed the issue in general meeting. But now, when you have suspicion over Jane, you should make every possible effort wherever possible to keep the matter confidential. It should be ensured that there would be no negative impact upon Jane till her act is proved. The morale of the other employees should not be affected due to the matter and the disclosure of matter might also affect the evidential proofs against the wrong doer. Furthermore, you are not sure of the guilt of Jane and you have no proof of it as well.

You should draft the investigation plan and should identify who should be called to the investigation meeting, what type of evidences should be gathered and how to gather them, and to contact the parties involved in the issue.You should consider the terms of reference and what is required to be established and in case of time constraints, the evidences must also be collected within specific time period. With the progress of the investigation, other possible sources might also come to light or establish relevancy. It should keep it in mind that reasonable investigation is to be conducted and there is no requirement of getting into each and every detail of the issue.You should also find the relevant parties that can provide information related to the investigation and should be asked to provide witness statement as well. The evidences should be collected by holding the investigation meetings at an initial stage of the investigation. Particularly, in a case of complaint or grievance, the investigator requires to interview them to understand the matter completely. In a potential disciplinary issue, the investigator should consider interview of the employees at an initial stage, which could help in establishing what facts are under dispute and enable him to emphasize on such an issue. Additionally, if the employee suspicious to be guilty, admit the allegations against them, it might eliminate the requirement of investigation however, the reason behind the incident might still be investigated. The investigation should be conducted in a private room without any interruption at the workplace and during working hours. Instead, where greater degree of confidentiality is essential, it might be better to hold meeting outside the organization after working hours.

So you should draft an investigation plan and decide who must be called for the meeting, however, it would be possible to call Jane for investigation meeting after collecting required evidences against her so that her guilt could be proved.You should ensure that the investigation should be completed in time as Jane is going to take maternity leave after few months, before which, you should collect the evidence to find if she is guilty or not.You should keep the confidentiality of the matter and should conduct the investigation in a private room within the working hours and it should not be informed to others not related to the issue. The related parties to the issue must only be informed so, Jane should only be informed in written about the allegations against her and that the investigation is going to take place. She should also be informed about the person to be contacted in case of any queries.

The investigation meeting should be conducted however, some investigations only require collecting the evidences written as well as physical, so it is required in such circumstances.The investigation meeting helps in conducting interview of a  person involved in the matter and it must not turn into the disciplinary meeting as, disciplinary action requires separate meeting. If investigation meeting becomes essential, the investigator requires to plan how to get them recorded as the investigator might personally record the meeting or someone else to make notes of the meeting. The notes should include the statement of the witnesses and interviewee and is considered as a witness itself. With the agreement of the interviewee, the meeting can also be recorded by the use of an audio device. There are few tips and techniques that should be employed to support  the knowledge, skills and approaches of the investigator. The investigator should focus on questioning technique, listening abilities and body language of themselves and the interviewee. The questioning technique must involve a mix of open questions, closed-ended questions and probing questions and such others in order to take out the maximum possible responses from the interviewee. On the other hand, some questioning approaches such as interrogative questions, leading questions and multiple questions should beavoided. If she refuses, you must make every effort possible to convince her to attend the investigation meeting in order to resolve the issue. You should call for an investigation meeting with Jane and if it requires disciplinary action, the separate disciplinary meeting can be conducted. It should be preferable for youto record the investigation meeting with the permission from Jane because youare already concerned about the matters where, pregnant employees sue their employers for dismissing them. You will have the proof in the form of recordings of meeting with which, you will become able to prove if she is guilty and she will not be able to take undue advantage of her pregnancy to bring the matter into litigation. You should emphasize upon conducting the best suitable questioning techniques while investigating the matter because Jane is already agitated and she might refuse to be a part of the investigation meeting.

The evidences should be collected and facts of matter should be established without taking into consideration whether the evidences are in support of allegations put on the suspected wrong doer or challenges the allegations (Crunch, 2012). After collecting the evidences, every evidence should be objectively analyzed regarding what it reveals, doubts regarding the reliability and credibility of the evidences, supporting and contradictory evidences or requirement of any other evidences. The copy of the witnesses should be signed by them and the copy should be given to the interviewee so that it should be confirmed that they agree with the statements given by the witnesses. Similarly, the statements given by the interviewee should also be signed by them and if they want changes, the amendments should also be signed by them. In the case of interviewee refusing to sign the statement, it should also be mentioned by the investigator that interviewee refused to confirm about the accuracy of the meeting (Magrath Sheldrick, 2018). You should gather all the written evidences, documents and physical evidences related to the investigation which include electronic evidences, CCTV records, phone records and other relevant records. In exceptional circumstances, when there is clear and legitimate justification to search the possessions of the employee but, with the consent of the employees in order to make it legal. If the employee refuses to allow the search, it should also be noted in the investigation report. You should gather sufficient number of evidences whether in the form of CCTV footage of theft or calculating from the receipts or from the other eye witnesses who might have seen Jane or somebody else taking money from the cashbox. As you do not have sufficient proofs against her and,you cannot directly blame her for theft of money. Furthermore, you should check the credibility and reliability of witnesses whether they are telling the truth or lying.You should collect the statements of witnesses and should provide its signed copy to Jane so that she could get agreed with the statements given by other colleagues. As the matter is related to theft, you can conduct search of personal possessions of Jane with the permission of Jane and in her presence at the time of search.

The writing of investigation reportis to establish the facts of issue whether they are reasonably possible and suitable, so it is proved to be beneficial if the details and findings of the investigation are in written form. The report should include all the facts of issue and whether there are mitigating circumstances that require consideration. Excluding any information might make the investigation open to the accusations of biasness or filtering the evidences to be suitable to the findings of the investigation (NI Business Info, 2018). It should reflect the personal conclusions of the investigation and if advice from third party has been taken, it should also be mentioned. The report should be written in a specific format and should be structured properly. It should include certain specific headings like introduction, process of investigation, investigation findings, conclusion of the report along with the supporting documents and evidences. ACAS recommends to use the investigation report template developed by it, in accordance with their own needs. So, you should use appropriate language and should keep it concise and include all the evidences that has been collected. You should arrange the evidences on the basis of uncontested facts, contested facts and unsubstantiated claims. You might recommend formal action, informal action or not any action to be taken into consideration depending on the outcomes of the investigation.  

You should prepare written report of the overall investigation with all the details, evidences and witnesses along with the findings of the investigator. You should also adapt the investigation report template and should write about the investigation carried out by him in theft case in his cafeteria. After writing the report, you should make a recommendation and suggest if there is requirement of any further action or not. In this case, you might have to take the initiative of disciplinary hearing because Jane or someone else might prove to be accused of stealing the money (Gorry, 2014).

After the completion of investigation, you can proceed for any further action depending on the outcomes of the investigation. In disciplinary matter, further steps can be taken into consideration as well as the sanction that might be imposed in the case of disciplinary action can be established (Larkin, 2018). After the disciplinary hearing, you will come to knowif there is requirement of making amendments or updating the policies and procedures on the basis of needs of the organization and it would be appropriate to utilize the expertise of the employees as well (Johnson, 2017).

In this case, youare the only investigator and Jane is the suspect on whom, you are going to carry out investigation. You should conclude the report and suggest what kind of action would be appropriate. If Jane will prove to be guilty of theft, then you should consider disciplinary action to be taken against her. The disciplinary action to be taken against her might include her dismissal as you have indicated earlier.You are concerned because she is pregnant and she might sue you for dismissing her from the job due to pregnancy.

As you arehighly concerned about the legal action Jane might take against you because she is pregnant but you also wants to resolve the issue. In order to be fair and clear, you should adopt Code of Conduct suggested by ACAS to take disciplinary action against her.You should conduct investigation on Jane in an appropriate manner so that it might not hurt the sentiments of Jane however, if she is proved to be guilty of stealing the money from the cashbox, you will be able to dismiss her without any hesitation of being sued by her. Thus, by following the above mentioned strategies, you will be able to take legally appropriate initiatives in this regard.

References

ACAS, 2015. Conducting Workplace Investgation. [Online] Available at: https://m.acas.org.uk/media/pdf/q/0/Conducting_Workplace_Investigations_Nov.pdf [Accessed 10 December 2018].

ACAS, 2018. Maternity rights. [Online] Available at: https://www.acas.org.uk/index.aspx?articleid=1753 [Accessed 17 December 2018].

ACAS, 2018. Pregnancy and maternity discrimination. [Online] Available at: https://www.acas.org.uk/index.aspx?articleid=5271 [Accessed 17 December 2018].

Citizens Advice, 2018. Dealing with disciplinary action at work. [Online] Available at: https://www.citizensadvice.org.uk/work/problems-at-work/dealing-with-disciplinary-action-and-dismissal-at-work/ [Accessed 8 December 2018].

Crunch, 2012. Disciplinary procedures: common mistakes made by employers. [Online] Available at: https://www.crunch.co.uk/knowledge/employment/disciplinary-procedures-common-mistakes-made-by-employers/ [Accessed 8 December 2018].

Gorry, T., 2014. A Step by Step Disciplinary Procedure-From Verbal Warning to Dismissal. [Online] Available at: https://employmentrightsireland.com/a-step-by-step-disciplinary-procedure-from-verbal-warning-to-dismissal/ [Accessed 8 December 2018].

Johnson, M., 2017. Disciplinary warnings. [Online] Available at: https://www.rocketlawyer.co.uk/article/disciplinary-warnings.rl [Accessed 8 December 2018].

Larkin, N., 2018. How to give a disciplinary. [Online] Available at: https://www.cv-library.co.uk/recruitment-insight/how-to-give-disciplinary/ [Accessed 8 December 2018].

Magrath Sheldrick, 2018. Discipline and Terminations. [Online] Available at: https://www.magrath.co.uk/practice-areas/employment-solicitors-in-london/discipline-and-terminations [Accessed 8 December 2018].

NI Business Info, 2018. Disciplinary procedures. [Online] Available at: https://www.nidirect.gov.uk/articles/disciplinary-procedures [Accessed 8 December 2018].

UK Government , 2018. Taking disciplinary action against an employee. [Online] Available at: https://www.gov.uk/taking-disciplinary-action/writing-disciplinary-proceedings [Accessed 8 December 2018].

UK Government, 2018. Disciplinary procedures and action against you at work. [Online] Available at: https://www.gov.uk/disciplinary-procedures-and-action-at-work [Accessed 8 December 2018].

UK Government, 2018. Taking disciplinary action against an employee. [Online] Available at: https://www.gov.uk/taking-disciplinary-action [Accessed 8 December 2018].