Crime at work
What happens if an employee commits a crime at work. The most common offences in the leisure and hospitality industries are likely to be theft, assault or drug related. If the offence occurs in the workplace you may have CCTV or witness evidence to consider.
Your bar manager may, for example, have been pouring himself a pint after work and not paying for it, he may have been taking money from the till or he may even have assaulted a customer. Which of these crimes would entitle you to dismiss him and, if so, can you dismiss him on the spot?
This article seeks to give practical advice on how you should deal with an employee who commits a criminal act in the workplace. It looks at disciplinary action and the use of surveillance footage in dismissal proceedings.
The first issue you will need to consider when you are informed of an incident is the conduct itself. Has your employee done something relatively minor, such as helping themselves to a drink or free meal at the end of his shift? If so, you may feel that in the first instance this can be dealt with by simply having a word with the employee. If the employee has done something more serious e.g. assaulted a customer then you will need to consider disciplinary action. You will also need to consider suspending the employee with pay pending a full investigation.
As an employer contemplating the dismissal of an employee the question of unfair dismissal will always be a concern. As you are aware, there are 5 statutory fair reasons for dismissal. In order to show that a dismissal was fair you must have one of these 5 reasons for dismissal and must act reasonably in all the circumstances in dismissing the employee. The relevant statutory reason in the case of criminal activity at work will be misconduct. The starting point when you are dealing with any employee misconduct is your company disciplinary procedure which will give examples of what is regarded as misconduct and gross misconduct. Serious criminal behaviour such as theft, bodily harm and criminal damage will undoubtedly invoke your disciplinary procedure and in some cases will amount to gross misconduct. Issues such as taking illegal drugs whilst at work and reckless driving leading to a driving ban may affect an employee’s capability and performance, and disciplinary proceedings will no doubt be appropriate in these situations.
As well as having a potentially fair reason to dismiss your employee you will need to ensure that you follow a fair disciplinary procedure prior to any dismissal. The first stage of your procedure is to carry out a full and thorough investigation.
You may need to consider suspending an employee pending investigation. A period of suspension should be as short as is possible and should be kept under regular review. Suspension should be a way for you to carry out an investigation, not a form of punishment for the employee. Unless there is a clear contractual right to do so, you will not be entitled to suspend without pay.
During your investigation, you should ask any witnesses for statements, obtain CCTV evidence (if appropriate) and collect as much evidence as possible. As part of your investigation, you should meet with the employee concerned to obtain their version of events. If, during the investigation, CCTV footage is collected and is to be used as evidence, thought should be given to assess whether the footage is conclusive; it may need to be reviewed in light of any further evidence presented.
If, following initial investigation, you consider the matter serious enough to move to a disciplinary, you should invite the employee to a formal disciplinary meeting, at which the employee has a right to be accompanied. The disciplinary process must be carried out fairly and objectively.
Before the disciplinary meeting the evidence gathered during the investigation should be sent to the employee. It is important at this meeting that the employee should be given a chance to provide their version of events and state any mitigating circumstances. If, after the investigation and hearing, you form a reasonable belief that the employee has committed a criminal act at the workplace you should confirm your decision to them, as well as the sanction being imposed, both in person and in writing, and inform the employee of their right to appeal.
If your employee has committed an act of gross misconduct such as serious theft then you will have the right to dismiss him without notice or any payment in lieu of his notice period. However, you should note that gross misconduct does not mean that you can dismiss the employee on the spot. You still need to go through a fair procedure i.e. suspend the employee, carry out an investigation and hold a disciplinary hearing prior to concluding that the conduct amounts to gross misconduct entitling you to summarily dismiss him.
Even though there is no legal obligation on you as an employer to refer the employee’s conduct to the police, you may feel that you have a moral duty to do so. If this is the case, it will then be up to the police to commence and continue their investigations. These investigations do not circumvent the need for you to carry out your own investigations and conduct your disciplinary procedure. Indeed, you should not wait until the police have concluded their investigations before proceeding with the disciplinary procedure. Further, even if the police decide not to charge the employee, this should not have a bearing on your disciplinary decision.
The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.