Tag Archives: theft

Open and shut

Sooner or later every HR practitioner is faced with the open and shut case. A case where on the fact of it, the actions taken are so blatantly wrong that there seems little point in taking a lot of time to decide what needs to be done. Busy line managers can exert considerable pressure to come to a conclusion and move on.

 The canny HR manager often uses employment law as a way of slowing things down and encouraging everyone to reflect. It is much easier sometimes to say “the lawyers want us to do this” than it is to say “I think your decision may be flawed and misses some key data”. I have had HR practitioners ring me and say “Give me a reason why we can’t make a decision today”.

 When it comes to decisions on discipline and dismissal the employment law requirements for a good process are not that different to the classic good process for making a sound decision. The problem is most of us are not good at making sound decisions – particularly when we are upset.

Managers, being human are often keen to rush to a conclusion and by-pass any real decision making process. This can cost the organisation dearly – not only in legal terms – but in terms of losing individuals who might otherwise have benefited the organisation over the longer term.

 Here are some open and shut cases.

 Before you click the link to find out how it turned out, ask yourself: What would my managers do?

 What would I advise?

  1.  Seeing red
    A customer complained that a waitress deliberately tipped a jug of iced-water into his lap and stormed off. The waitress had only been employed for six weeks. When asked about the incident she agreed that is what she did. Her line manager was anxious to ‘get rid’ saying she was obviously volatile.  https://irenicon.wordpress.com/2011/08/15/seeing-red/
  2. A word to the wise
    A retailer had half a dozen staff in each of three shops. He was a very hands-on boss and knew all his staff quite well and saw them regularly. He regularly opened and closed each of the shops and often worked alongside his staff during the day.
    One of his staff had worked for him for a couple of years, and had been quite reliable and hard working. He started getting into work late and seemed to have lost all interest in the job or getting in on time. One day, the owner was standing by the door of the shop when the guy turned up 15 minutes late for his shift. “What time do you call this?” said the boss.
    He was met with a mouthful of abuse in front of all the other staff at the shop.  https://irenicon.wordpress.com/2011/08/16/a-word-to-the-wise/
  3. To catch a thief
    Our client had two warehouses at opposite ends of the country. They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.
    On a fairly regular basis, security would catch someone stealing an item or two. They were interviewed and dismissed. All the captured thieves said “everybody is doing it” … but they would say that, wouldn’t they?  https://irenicon.wordpress.com/2011/08/17/to-catch-a-thief/

It is easy to blame employment law for having to ‘jump through hoops’ and go through tortuous and unnecessary processes. But people decisions are very important decisions for the organisation, and for the individuals concerned. Employment law places great stress on the decision making process (otherwise known as the investigatory and disciplinary process). We shouldn’t need laws to make us go through a rounded decision making process, but following employment law requirements can have that beneficial effect. We can use employment law related decisions as a way of teaching better decision processes – to the benefit of the business in the round. Or, as we often say, “let’s turn our lemons into lemonade”.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website : www.irenicon.co.uk
You can follow Annabel on
Twitter

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Filed under discipline and dismissal, employment law, Security, Theft

To catch a thief

Our client had two warehouses at opposite ends of the country.  They carried similar stock, had similar staffing levels, and were in similar areas (from a demographic point of view), yet one warehouse had a shrinkage (theft) rate way above the others.

On a fairly regular basis, security would catch someone stealing an item or two.  They were interviewed and dismissed.   All the captured thieves said “everybody is doing it”   but they would say that, wouldn’t they?

Despite the monotonous turnover of staff dismissed for theft, the thefts would reduce for a few weeks or months, and then start to increase.  It seemed as though even honest new recruits quickly turned to theft.   Large amounts of money were spent on surveillance and security.

Each individual who was caught was a fairly open and shut case – they were often caught red handed, and many confessed quite freely.    Job done?  Thief removed from the premises?

We had a look at how the security team were questioning the individuals they caught.   They were very focused on  “Do you confess….”.   With a bit of training and support from us, we got them to change the way they asked questions, and what they asked about.  We also helped them to look at the wider pattern of data surrounding the thefts and dismissals that had already taken place.

Outcome

It turned out it was the Warehouse  Manager who was co-ordinating the thefts, recruiting new staff and inducting them into the network.   He was arranging for individuals to be caught, both to punish ‘freelance’ thieves who were not within his protected group, but also to show that he was ‘onto the problem’.

He had a team of subordinates who worked with him, and they were trucking goods out of the warehouse on articulated lorries!

In the year after the Manager’s dismissal, the client saved a million pounds on stock losses alone.

See our previous blog

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under discipline and dismissal, employment law, Security, surveillance, Theft

Reasonable but wrong?

Many areas of employment law rely on the idea of a ‘reasonable belief’.   A reasonable belief does not have to be correct.  I may quite reasonably believe something that turns out not to be the case.

 

An employer who is trying to determine whether a gross misconduct offence (such as theft or gross negligence) took place does not have to establish beyond reasonable doubt that the event took place and the individual they discipline is responsible.  Employers have to show that they reasonably believed this to be so.

A reasonable belief is arrived at after a robust process which means:

  • The individual whose job is at risk knows what they are accused of and has an opportunity to comment
  • The investigation is not tainted by prejudgement or bias
  • The decision is made having taken into account the individual’s explanation
  • There is a right of appeal

An employer who believes a theft to have taken place would be on thin ice if they could not show any goods or money had gone missing, but it is not necessary to conduct a criminal style investigation with a view to proving who is responsible.  Employers can make up their minds on the basis of the facts they have before them.  That can include, in certain limited circumstances, dismissing two or more individuals if they cannot determine (after effort) which one is responsible for the act.

The ‘reasonable belief’ is arrived at as a result of a ‘reasonable method’.

There is no room here for a faith- based type of belief – telling a tribunal that a minor deity told you who was stealing from you is not likely to impress, however profound your personal belief system might be.  There is not much room here either for ‘gut feelings’.  Managers will need to go beyond ‘a feeling’ and produce some logical reason that connects an individual with an event (and makes it something they are responsible for).

Gut feeling will be a reason to investigate, but it is not an investigation.

It is easy to get caught up in disciplinary investigations and forget to look outside our current thinking.  What seems reasonable and self evident to us, at midnight having worked three days on a problem, may seem far from obvious or rational in tribunal a few months later.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

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Filed under discipline and dismissal, employment law, employment tribunal

Security at work

Many disciplinary rules properly specify breach of security or data handling rules as gross misconduct offences, which leave employees open to summary dismissal.  But the reality is that these long documents are often breached in minor, if not major ways, and the smart employee knows that some ‘rules’ count and some do not.  And there’s often a fascinating discrepancy between how breaches of such rules are interpreted in different sections of the same organisation.  Some managers will only take action if faced with a blatant (and proven) breach, whereas others monitor proactively for compliance, and keep a managerial eye on smaller breaches and trends.  These differences in approach cause problems for the whole business, and undermine the fairness of dismissals.  But fundamentally they derive from over-complex rules.

Sometimes the rules get stuck in being over-specific.  I once saw a rule – “do not steal from the petty cash box whilst wearing gloves”.  I always wondered if it was OK to be a bare-handed thief in that organisation.  Perhaps it was also OK to be a bare-faced liar.  But I’ve also seen rules that are so wide ranging that no-one could comply.  How about – “We require our staff to be totally honest at all times.”    I would hate to ask anyone in that organisation what they thought about my latest haircut!

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

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Security at work

Reports indicate that theft and fraud in the workplace are increasing, as the recession and its after effects continue.

UK employment law places great emphasis on rules, policies and procedures.  You won’t find much about this in statute law, but the ACAS Codes, best practice advice and case law combine to promote written rules and policies.

These pressures have led to the development in most organisations of operation manuals, staff handbooks and training manuals, and these usually contain the security do’s and don’ts.  The rules ideally will cover security of goods, money, information and people.

There is an interesting tendency for these documents to get longer and longer — rules get added over time, as specific breaches are identified and dealt with.   This means that some security rules become so long that they have the unintended effect of making controls harder to enforce and breaches harder to challenge, not easier.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

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Filed under employment law