You would think that dealing with an employee you caught stealing from your business would be an open-and-shut case. You march them to the door and tell them they should be glad you didn’t get the Gardaí involved. After all, it’s a criminal offence.
Unfortunately, this couldn’t be further from the truth. In fact, taking such action can land you in a lot of hot water, costing you thousands in the process. Only this week there were two such cases.
The first involved a supervisor at a KFC outlet who was awarded €31,000 by the Employment Appeals Tribunal after he was dismissed over alleged irregularities on sales of a type of dessert.
The second, related to a Tesco employee who removed a Vtech toy from the store without paying for it. He was awarded €18,000 over the dismissal process.
In cases where an employee has allegedly been stealing from their employer, the company still has a duty to conduct a fair and unbiased investigation. Furthermore, any disciplinery action must be proportional to the offence committed.
Here are some tips to help you if you find yourself in the unfortunate position of dealing with an allegation of theft in the workplace.
1. Refer to Your Contract of Employment and Staff Handbook
From the time that employment commences, each staff member should be provided with a contract, which they must sign, and staff handbook that clearly stipulate the terms and conditions of their employment. Amongst these terms and conditions are the disciplinary procedures adopted by the company for dealing with issues of performance, bullying, negligence, misconduct and so forth. The procedure serves as a guideline, not just for the employee but for the employer too, that can be implemented when necessary, ensuring that a fair, unbiased and systematic series of series of steps.
Here are some considerations when drafting your employment contract and staff handbook:
- How long a probation should I have?
- Will I pay employees on sick leave and if so for how long?
- Do I have a clear job description?
- Will my employees be working at different locations?
- Who will carry out disciplianry investigations?
- Do I need a CCTV policy?
- Do I need a social media policy?
- What are the employees statutory leave rights?
- Do employees need to keep some annual leave for Christmas or Easter
While it is important to clearly state the disciplinary process in your staff handbook, it is equally important that it is implemented effectively. As part of the process, an employer should carry out a disciplinary investigation, even in cases of apparently ‘obvious guilt’ or where there is an admission of guilt. With this in mind, an investigation should always be carried out prior to any disciplinary action if an employer is to ensure it does not fall foul of the principles of fairness and natural justice established by case law.
Remember, as an employer you must be able to demonstrate that you genuinely believe that the employee is guilty and that this belief is based on reasonable grounds, after having carried out as much investigation into the matter as is reasonable in all the circumstances of the case. A flawed or incomplete investigation can undermine the entire disciplinary process, leading to claims of unfair dismissal, costly legal battles and hefty pay-outs that often cripple smaller businesses.
Below are some points, provided by UK based commercial law firm Hill Dickinson, that every person carrying out the investigation should consider before commencing:
- What’s the problem? Clearly identify the allegation to be investigated.
- Independence and impartiality - ensure the investigating officer is independent: they should not have any previous involvement in, or knowledge of, the matter.
- Open mind - the investigating officer should keep an open mind. Their task is to look for evidence which weakens, as well as supports, the employee’s case; it is a fact finding exercise.
- Swift investigation - ensure the investigation is commenced and concluded without unreasonable delay; it is important to establish the facts and put the allegations to the employee promptly before recollections fade.
- Expectations - where significant delays in concluding the investigation are anticipated, this should be notified to the affected employee and where possible a timescale for completion given.
- Preserving evidence - the investigating officer should consider what evidence or documentation they might require. Where evidence is likely to perish or be removed or destroyed this should be gathered as a priority.
- Fair investigatory meeting - interview the ‘accused’ employee to establish his/ her version of events; give the employee advanced warning of the meeting and time to prepare. The employee should be made aware of the allegations against them, preferably in writing and be provided with any documentation that the investigating officer wants to speak to them about.
- Representation - be aware that, although there is no statutory right for an employee to be accompanied at an investigatory meeting, the right may apply under the company disciplinary procedure or by reason of custom and practice.
- Witnesses - interview witnesses, sometimes more than once if necessary. Employers need not interview all available witnesses once a fact has become clearly established.
- Record keeping - if possible, have someone accompany the investigating officer to interviews so they can take a note of the interview allowing the investigating officer to focus on the questions. Ask the witnesses to read through the notes and confirm they are a true reflection of the conversation by signing and dating them.
- Confidentiality - witnesses should be advised not to discuss the investigation with other employees or third parties and, where appropriate, be reminded of their legal duties of confidentiality.
- Impartial reporting - after collating the evidence, including statements and relevant documents, the investigating officer should draft an investigation report setting out a summary of the evidence including any inconsistencies. They should not draw any conclusions: that is the role of the disciplinary panel.
- Recommendations - depending on what the employer’s disciplinary policy says, it may be within the investigating officer’s remit to recommend whether the matter should proceed to a disciplinary hearing.