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A. Serious allegations should be investigated formally so you have a solid basis for a dismissal later, and speaking with the employee will be a part of that process.
Employees who have over 2 years’ service have the right to a full ‘disciplinary’ process. In your client’s case this means that if you want to dismiss the employee for gross misconduct, and theft usually fits into this category, you need to fulfil your contractual obligations to the employee.
The first step of the disciplinary process when you think that an employee might have broken a rule is the investigation. The point of the investigation is to find out as much as you can about what happened, when and why.
This can be done by speaking to the employee and relevant witnesses, looking at computer or CCTV records and compiling evidence to decide whether there is a case to answer to.
In order for a misconduct dismissal to be fair, the employer must believe the employee has carried out the misconduct, have reasonable grounds for that belief and have carried out as much investigation as possible at the time they hold that belief.
It is not necessary to prove the employee carried out the misconduct, but have a reasonable belief that they did.
A reasonable belief is formed by carrying out a reasonable investigation. Often, employees are found to have been unfairly dismissed because the employer’s investigation into the alleged conduct was not thorough enough for a reasonable belief to be formed.
If after the investigation, no actual or circumstantial evidence was established, your client would not have enough to justify a progression to a disciplinary meeting. If your client decides to dismiss the employee anyway, your client could be challenged at employment tribunal.
The motivation to exit an employee suspected of theft is understandable but if the employee in question has over 2 years’ service and there is no reasonable evidence of wrongdoing, dismissing them will always be a risk.
However, if this employee has worked for the employer for less than 2 years, and your client has a mechanism that allows them to treat employees differently based on their length of service, dismissing the employee is much less risky.
For these types of employees, its still best to still have at least one meeting before taking any action, your client should explain the situation and give them the chance to ask questions, raise concerns or defend their position.
Employees with less than 2 years’ service can still raise claims like discrimination or whistleblowing, so make sure there isn’t any element of these before dismissing.
Situations like this demonstrate the importance of employment contracts that include meaningful mechanisms that allow for employers, such as your client, additional options to exit undesirable employees.
If your client had no such mechanism built in, I would suggest installing CCTV.
There is no legal requirement to have a CCTV policy, employers are permitted to install them in areas that employees do not have an expected right to privacy, such as a changing room.
However, because CCTV recording means personal data is processed, make sure your employees know what changes you have made to their monitoring and why.
With CCTV in place, employees no matter their length of service with your client, can be held accountable in the future.
