The news that the Court of Appeal has quashed the convictions of 39 former Post Office workers who were found guilty of stealing money from the company may have got employers thinking about how they would handle cases of suspected theft or fraud in their workplace from an employment law perspective.
With this in mind, here’s five fast facts:
1. Carry out an investigation
If an employee is suspected of wrongdoing, such as theft or fraud, employers must ensure that the matter is thoroughly and promptly investigated before any action is taken. Remember, the purpose of carrying out an investigation is to find out all the relevant facts. If a reasonable investigation into the matter is not carried out and the employee is later dismissed, a tribunal may well find the dismissal unfair.
2. Ensure the investigation is timely, appropriate and carried out fairly
When it comes to carrying out the investigation remember that:
- It should be carried out by an appropriate person who is not involved in the matter
- It should be undertaken promptly, be thorough and carried out objectively and with an open mind. It’s important to look out for any evidence that supports the employee as well as evidence against them and make sure that the employee is dealt with in a fair and reasonable way.
- Records of the investigation should be kept
3. Follow a fair disciplinary process
Where there is sufficient evidence to warrant disciplinary action it’s important that a fair process is followed. Whilst it can seem tempting to dismiss an employee on the spot where an employer believes they have committed gross misconduct, if a disciplinary process isn’t followed, not only could the dismissal be found to be unfair, but the tribunal could also increase the compensatory award by up to 25% for an unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievances (ACAS Code).
Very briefly, the ACAS Code requires:
- The employee to be invited to a disciplinary hearing in writing
- A fair disciplinary hearing to be held, including allowing the employee to be accompanied by a colleague or trade union representative if they wish
- Giving a written outcome and a right of appeal
4. Further investigation may be needed
Bear in mind that new facts/evidence may come to light during the disciplinary process, if this is the case further investigations may be needed before a fair decision regarding the matter can be reached.
5. Any decision to dismiss must be fair
In many cases which involve matters of theft or fraud employers will be considering whether it is reasonable to dismiss. Whilst this will depend on the individual facts of the case it can be helpful to bear in mind that:
- An employer must genuinely believe the employee to be guilty of the allegation(s) detailed in the disciplinary invitation, have reasonable grounds for that belief and have carried out as much investigation as was reasonable
- Even in cases of gross misconduct it’s not automatically fair to dismiss – a decision to dismiss has to be within ‘the band of reasonable responses’
- It’s important to take into consideration any mitigation the employee has raised or the employer is aware of, the employee’s length of service, the employee’s disciplinary record, whether the employee has shown remorse, what level of sanction has been applied in the organisation previously for the same act and what sanction is provided for in the contract
Employers should always seek advice on the facts of their case from Kingfisher Professional Services Ltd before dismissing, remember an employee may complain to an employment tribunal if they feel they have been unfairly dismissed.
If you are concerned about suspected misconduct in the workplace, please contact Kingfisher Professional Services Ltd for advice on the facts of your case before taking action. We can provide expert, practical guidance at every stage of the process. If the employee concerned has under two years’ service, in some cases it may even be possible to dismiss without first following the usual process, but this should not be undertaken without first seeking Kingfisher Professional Services Ltd’s advice as there are a number of claims even short serving employees can bring.
Please do not hesitate to contact Kingfisher Professional Services Ltd as we are happy to help.