22 June 2012

Employment Law SOS: theft

We have a rest area where we provide coffee and tea plus a water machine. Stocks of teabags and jars of coffee are going missing on a regular basis. We have no idea who the culprit is: what is the best way to deal with this?

Theft from the workplace is a difficult and sensitive issue, but not one an employer can afford to ignore.

In the first instance, it would be appropriate to issue a communication to all employees confirming that these facilities are provided on a discretionary basis for their comfort and convenience, and any drink supplies are to be used for making and consuming drinks on the premises. Your written disciplinary policy should confirm that theft of company property is deemed to be an act of gross misconduct, which could result in dismissal. This should be emphasised in your staff communication. Hopefully, this will nip the problem in the bud by making it clear that the company will not tolerate pilfering.

If the problem continues, you may decide that more stringent measures are called for. Monitoring of the rest area may not be financially feasible, unless a CCTV system is already installed.

However, if there is sufficient evidence that theft is continuing, or the problem escalates, you may decide that it is necessary to search employees' lockers and bags. In order to undertake a search of employees, or of their property, the employer must have reserved a contractual right to do so in its employees' contracts of employment. Notwithstanding a reserved contractual right to search, the employer must also ensure it obtains employees' express consent to a search prior to undertaking one. Failure to obtain consent can expose the company to claims of unfair dismissal and potentially a criminal prosecution for assault.

Preferably, the company will also have a specific policy on search, detailing the circumstances and manner in which searches will be carried out and explaining the consequences of an employee unreasonably refusing to be searched when requested – ie, disciplinary action.

Author
Ruth Nodder, principal legal adviser, EEF

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