By Daniela Kocis Fitzgerald, Director, The HR Dept Fingal
Keeping on top of reform and developments in the employment law area has always been a challenge. As humans, we sometimes act on impulse when it comes to something as sensitive as theft. We forget to consider the bigger picture and only have the end game in mind: to punish the employee who allegedly stole. We do not consider procedure, we rush to the outcome. In order to ensure maximum protection of a company, we should take a few important measures.
How can we avoid and prevent theft?
First we should establish if theft is a possible issue in the company. If the company has a lot of cash or valuable items, then theft is a possibility. And let’s not forget about intellectual theft and time theft!
A company could have a sophisticated alarm system and CCTV, which might deter and stop possible burglars and shoplifters, but this might not necessarily stop an employee stealing from the business.
Prevention starts with pre-employment screening. As employees with short service or casual employees don’t have loyalty to the business, they are the highest risk when it comes to theft. Investing time and effort in hiring the right people will pay off in the end. Questions about previous roles and any disciplinary sanctions should be standard and can be included in the application form. Offers of employment should be made conditional of relevant reference checks being carried out. It is also important that reference checks are made before an employee commences employment, if possible.
It is also important that all employees are advised of what will be checked and what data will be retained, in order to give their consent.
It is advisable that the application form or contract states that any false information provided during any stage of the recruitment process will lead to dismissal.
How do we protect the business?
The most important step in protecting a business is having clear policies and procedures that the employees are aware of. If there a suspicion that an employee is stealing, there must be a procedure to deal with this. The procedure must be in writing, it should have a definition of what will be considered theft, it needs to set out the steps that will be taken to investigate any such allegations, the potential outcome. The procedure should outline how the investigation will take place, the right to representation of an employee and their right to state their case. Rules of natural justice should always be applied.
Staff handbooks and policies and procedures should be reviewed periodically and they should reflect any changes in legislation. A “one size fits all” approach when it comes to policies and procedures could cost the business more in the long run than a tailored policy. Every policy should be tailored to the requirement of the business, because every business is different. A policy that might suit a large organisation, which sets out that different individuals will investigate matters and individuals completely separate to the investigation will hear the disciplinary matter, will not be feasible in a small organisation. A retail business might have a search policy, which might not be applicable in another organisation.
Use of CCTV
Some employers use CCTV to record and prevent theft. However, the use of CCTV for such matters must be very clearly regulated. While a business might legitimately install CCTV to monitor customers and staff, it is imperative that there are clear signs informing people that they are under surveillance. The use of hidden cameras should not be considered unless legal advice has been sought beforehand.
The use of CCTV is regulated under the Data Protection Regulation and consent is always the key issue. If a business uses CCTV to monitor employees, they must ensure that monitoring will not be excessive and the purpose of collecting data is made clear to the employee. All this should be included in a policy and made available to employees. If the policy states that CCTV will be used to monitor staff for a specific purpose, it cannot be used for any other purpose. For example, if a company has a policy that states that CCTV will be used to monitor and prevent staff theft only, it cannot be used to discipline a staff member for lateness.
Getting procedures right
All well drafted Staff Handbooks will provide for an investigation procedure with suspension (on full pay) and this should be considered as a first step in any investigation involving theft from the company. Suspension without pay is not advisable as it is a punitive measure and can be seen as having a preconceived opinion before the process has been followed. This could be a flaw in the process if an unfair dismissals claim is taken against the company.
An employer should ensure they have the facts right before taking any action. They must have a reasonable suspicion or belief that there is a matter which needs to be investigated. Once the investigation has been completed, there should be a disciplinary hearing. The employee should be provided with the evidence in advance of the hearing. The employee must be given the opportunity to make their case. Fair procedures should always apply. Sometimes appointing an external investigator might be necessary. Even if an employee admits to the offence, they must be allowed to state their case or make a submission if not attending the hearing. An employee should not be dismissed before they are given the opportunity to present mitigating circumstances.
So what should we do?
- Review your staff handbook and your policies and procedures.
- Ensure that procedures set out that theft will be deemed as gross misconduct.
- Ensure employees are aware of CCTV and what monitoring is carried out. Have a clear policy that deals with same and details what data will be used in the disciplinary process.
- Ensure you are compliant with Data Protection Regulations if using CCTV.
- Follow fair procedures.
- Ensure staff are aware of all policies and procedures and have signed receipt and understanding of same.
What shouldn’t we do?
- Don’t monitor staff excessively.
- Don’t delay suspension if gross misconduct could be the outcome.
- Don’t keep evidence from the employee as element of surprise.
- Don’t assume employees are aware of policies.
- Don’t make assumptions of guilt.
- Don’t skip any steps in the process.
Daniela Kocis Fitzgerald, Director of the HR Dept Fingal is an experienced employment law consultant and HR expert. Daniela is CIPD qualified and has significant experience in assisting employers on HR and employment law issues that may arise during the full employment cycle.
Daniela advises clients daily on all aspects of HR and employment law, from recruitment and onboarding, to complex cases like gross misconduct, bullying/harassment, redundancy and TUPE. The HR Dept also provides bespoke HR training to SME’s, equipping them to deal confidently with people issues they encounter in their organisation.