Andy Williams, employment and pensions lawyer with Charles Russell, offers advice on what to do if you suspect that your staff are stealing from your guests
You operate a large hotel. Last week one of the guests alleged that her purse had been stolen from her handbag, which she had left in her room. The police were informed and one of your cleaners has been arrested and charged with theft. The cleaner denies stealing the purse and has pleaded not guilty, with the matter now being referred to the crown court. The cleaner is a long-serving employee, highly regarded by both you and the other staff, and has a record of previous good behaviour. What as her employer do you do?
Criminal proceedings and employment matters are separate matters, and an employer's decision to dismiss or discipline must not be made solely on the police investigation or subsequent charges brought. Employers are not required to decide "beyond reasonable doubt" whether an employee committed an offence, but need only have a genuine belief on reasonable grounds after reasonable investigation that the employee committed the offence in question.
Criminal proceedings take some time to be brought to a conclusion. However, you are required to take action without "unreasonable delay".
Awaiting the outcome of criminal proceedings before concluding an investigation is rarely an option, and in any event, the different thresholds of guilt, as stated above, may yield different results.
The risk of any knee-jerk dismissal is the likelihood that a tribunal will consider it unfair. It's usually better to suspend on full pay pending investigation for cases of alleged gross misconduct. This will lessen the risk of a dismissal being found to be unfair.
Treat any allegation of theft (or criminal misconduct) as separate from any pending criminal proceedings and promptly conduct your own reasonable investigation.
Written notification of the alleged misconduct must be provided to the cleaner and she should be invited to a disciplinary meeting. Each stage must accord with the contractual policies in place, or at the very least the provisions of the statutory dismissal and disciplinary procedures (DDP).
The cleaner must be allowed the opportunity to be accompanied to the meeting by a work colleague or trade union official - not a lawyer or anyone else, unless the contract or relevant policy states otherwise.
The meeting must allow the cleaner to put forward her case and the employer must not make a decision on the outcome of the investigation until after the conclusion of the meeting.
A decision on the disciplinary allegations must be communicated to the cleaner (as with all stages of the procedure) without unreasonable delay. The decision must be one that could be considered to be within a reasonable range of responses taking into account all of the circumstances. This will include consideration of the cleaner's previous good conduct and the level of evidence obtained, which could include CCTV footage.
The cleaner should be informed of her right to appeal, preferably in writing, against any decision.
If the cleaner totally refuses to co-operate - for fear of incriminating herself in the criminal prosecution, for example - you are entitled to make a decision on dismissal if you consider that the material you have is strong enough to justify dismissal in the circumstances.
Failure to follow the procedural statutory steps could result in the dismissal being found to be automatically unfair, and the tribunal could increase the damages awarded by between 10% and 50%.