While theft is undoubtedly not the type of conduct that an employer should have to tolerate and can attract ‘instant dismissal’, it is essential for employers to understand what ‘instant dismissal’ means.
Instant Dismissal, Theft & Legal Obligations
First, it is essential to not only understand what sort of evidence you need as an employer to be able to dismiss a member of staff for theft (or for any other misconduct) but also to be aware of what your legal obligations as an employer are.
In situations where conduct such as theft is concerned, employers should be aware that unlike in the criminal court system where an offence must be proved ‘beyond all reasonable doubt’, in employment cases, the burden of proof is less and employers must only show that they had a ‘reasonable belief’ in the conduct complained of.
In practice, this means that employers must have at least some evidence on which they can form this belief, but it is not necessary to catch the ‘employee in the act’.
There may, of course, be occasions where an employee is ‘caught in the act’ but even in this scenario, employers should be aware that ‘instant dismissal’ or ‘on the spot dismissal’ could still expose you to a claim of unfair dismissal if the employee has been employed for more than two years.
Suspicion of Theft
In a situation where there is a suspicion of theft, and assuming that there is some evidence upon which to draw this conclusion, an employee should first be suspended, pending a full investigation.
A suspension should generally, be on full pay. A suspension is not viewed as a disciplinary sanction but rather a measure to enable an employer to carry out an investigation.
If an employee is suspended without pay, this can give the appearance that a decision about the outcome of the investigation has been predetermined, which can render a dismissal unfair.
Once you have suspended the employee, you should then conduct a full and thorough investigation to try and determine if the employee is potentially guilty of theft.
Evidence can take many forms and will to a large extent depend on the circumstances of the case, for example:
- Stock has been disappearing only when the employee in question has been working;
- CCTV footage;
- Evidence from other employees.
It is important that your investigation be thorough and this should all be documented.
Formal Disciplinary Meeting
Once your investigation is complete and presuming you have enough evidence to give you a ‘reasonable belief’ that theft has occurred and the employee in question may be to blame, you should invite them to a formal disciplinary meeting to discuss the allegations.
It is important that you follow the procedure set out in your company’s disciplinary procedure and you should give the employee adequate notice of the hearing,
While in many cases, 48 hours’ notice should be sufficient, this depends in no small extent on the facts of the case, and common sense should be applied.
If your investigation has generated a significant amount of documentation (which should be disclosed to the employee with the disciplinary invite), you need to ensure that you give the employee adequate time to consider the evidence against them and to prepare their defence.
In the disciplinary invite, you need to explain to the employee that the meeting is a formal disciplinary meeting.
Set out the allegations against them in full. Advise them that they have the right to be accompanied by a work colleague or an accredited trade union representative and also inform them that one of the potential outcomes of the meeting could be that their employment is terminated.
During the meeting:
- Explain the allegations to the employee;
- Explain the evidence that has been collated as part of the investigation;
- Ensure that the employee is given the opportunity to respond to the allegations and put forward their version of events;
- Ensure that full minutes of the meeting are taken.
Full detailed minutes are essential so that should an unfair dismissal claim subsequently follow, you have an audit trail of evidence that will enable you to show to a Tribunal that you had a ‘potentially fair reason’ for dismissal.
This should show that you undertook a full and thorough investigation, that a proper disciplinary meeting was convened and the employee was given every opportunity to respond to the allegations.
However, in light of this, dismissal was within the ‘range of reasonable responses’ that an employer could make.
Consider all the Evidence
Once you have concluded the meeting, you should go away and consider all the evidence available to you before reaching your decision; even if it is clear to you that the employee is guilty of theft if you make a hasty decision, it can appear that the decision was predetermined.
A Tribunal will look at whether the dismissal was ‘reasonable in all the circumstances of the case’, so not only should you consider whether you reasonably believe that the employee was guilty of the conduct complained of, but you should also consider other factors, for example:
- Their length of service;
- Their previous disciplinary record;
- Whether there were any mitigating factors.
A Tribunal would also expect that you have considered all the sanctions available to you.
Only once you are satisfied that dismissal is the only option that a reasonable employer could reach, should you inform the employee of your decision.
You need to inform your decision in writing to the employee, setting out the reasons that you have come to the conclusion that you have and advising them that they have the right to appeal against your decision (ideally to a more senior member of management).