DISCIPLINARY MATTERS - 15.06.2010

Workplace theft - more than one suspect

The legal position

It is widely accepted that workplace theft (irrespective of the value of the goods stolen) amounts to gross misconduct, i.e. it warrants summary dismissal. But suppose that some new computer equipment, or tools, have recently gone missing and it’s clear that there are several employees who had the opportunity to take it.

Dilemma. If the guilty party won’t own up - even with the police involved - is it possible to dismiss all the suspects? If so, what steps must you go through before taking any action?

Handful of suspects

Firstly, the normal rules of transparency and fairness apply. So a full investigation must be carried out. If you don’t do this and just sack all the suspects, you’re likely to be on the receiving end of an unfair dismissal claim from each one. Luckily, however, there is solid case law which supports group dismissals where an employer can’t identify the guilty party or parties.

Real life example

One such case is Parr v Whitbread plc t/a Threshers Wine Merchants 1990. A shop safe was emptied of cash during a night shift. Both the police and Whitbread carried out investigations. They discovered that the robbery had been carried out by staff, but the culprits could not be identified. However, the list of suspects was narrowed down to four employees and all were dismissed.

Claim. One of them, Mr Parr, mounted an unfair dismissal claim. The Employment Appeal Tribunal held that a group dismissal can be potentially fair, provided certain criteria are met.

Investigate thoroughly

In practice, this means working through the following steps:

1.Likely culprits. Identify those employees who would have access to the missing items and the opportunity to steal them.

2.Elimination. Discount any who can prove that they were away at the time, e.g. on sickness absence, out of the premises on business.

3.Statements. Speak to the likely culprits and take detailed statements. Investigate any new evidence, or explanations given to you.

4.Reasonable belief. Once you’ve narrowed down your list of “suspects” determine if each one could have carried out the theft independently, i.e. is your belief about their own personal guilt a reasonable one?

5.Action. Make it clear that unless the guilty party (or parties) identify themselves, each and every one will be subject to disciplinary proceedings that are likely to result in dismissal for gross misconduct.

Note. Provided you do this, any subsequent dismissals are likely to be fair.

Tip. You have no general right to search an employee, or their property - only the police can do that (if you do, it will amount to assault). But if you have a right to search policy, employees are more likely to consent to one - if they won’t, you can use it as evidence in a disciplinary hearing.

For a free sample right to search policy, visit http://personnel.indicator.co.uk(PS 12.13.05).