Dealing with employee theft

Dealing with employee theft

 

According to a poll commissioned by office-furniture supplier Kit Out My Office, more than two-thirds of UK office workers have admitted to stealing from their employers and colleagues at some time during their careers. With the cost of stolen items averaging at £12.50 and an estimated 15million workers having confessed to employee theft, the cost to UK employers adds up to a whopping £190million each year. For employers, dealing with employee theft can be a difficult process. If you suspect that one of your workers is stealing from your business, what should you do?

Suspicion vs Facts

Theft of any sort is a serious accusation to make. If, as an employer, you suspect an employee of theft then obtaining evidence is a crucial part of the procedure. Evidence may prove your suspicions to be wrong or they may prove them to be right. However, making an accusation of employee theft without substantial proof can leave you open for litigation. Suspicion is one thing. Solid facts are another.

Conducting an Investigation

Many employers are unaware of the fact that they have a legal right to launch an investigation should they suspect an employee of stealing. The investigation must be seen to be fair and based on evidence alone. Should the case reach an Employment Tribunal or result in the employee’s dismissal, the presiding judge will need to see a demonstration of fairness and impartiality.

The first step is to appoint an investigator. This can be someone within the office or, if it is appropriate, an external party. You may find that your company has specific policies on how to tackle issues of this sort. However, if not, the chosen investigator should be briefed on certain aspects of the inquiry, including:

• A timeframe in which to conduct the research

• Guidelines on their responsibility as an investigator

• How their evidence will be presented

• Minimising the investigation’s impact on employees’ morale

• Minimising the investigation’s impact on the day-to-day running of the business.

It is worth remembering that, ultimately, the employer bears full responsibility for the manner, fairness and impartiality of the investigation. CCTV can be an important tool in uncovering the truth of the matter, as can computer records. The chosen investigator should be given access to both.

Following Up the Results of the Investigation

In the event that the evidence proves the employer’s suspicions to be groundless, then the situation should be dismissed. If the employee has become aware that they are or have been investigated, the best procedure is complete transparency. If appropriate, you might need to present them with the evidence that presented the grounds for suspicion.

If the investigation provides firm evidence of employee theft, you will then need to decide what to do next. Most companies have protocols and procedures to follow. As a rule of thumb, the next step is to report the findings and present the proof to the company’s legal advisor. Smaller companies, who may not have representatives of this sort, are advised to seek the services of an Employment Law advisory services solicitor. Either option will provide you with the information you need to begin disciplinary proceedings.

Interviewing the Accused

Reporting employment theft to the police is at the employer’s discretion. This can result in criminal proceedings and either a financial fine or, in some cases, a prison sentence. However, most cases of employee theft are dealt with internally, either resulting in disciplinary action or dismissal.

Prior to any action being taken, it is strongly advised that the accused is interviewed. This gives them the opportunity to give their side of the story and is part of the process of fairness and impartiality. The interview should be conducted in a calm and reasonable manner and evidence supporting the accusations should be presented. Should the theft be proven, then the employer should once again consult a legal advisor.

While it might seem a long road to take, riddled with procedure, ensuring that your investigations follow the appropriate guidelines, protocols and advice are as much a protective measure for the employer, as they are the path to bringing a thief to justice.

When mini breaks just don't cut it

When mini breaks just don’t cut it 

 

Tribunal says twenty-minute rest periods for workers should be given in one run, not as a series of mini-breaks 

 

The mini break may have made the perfect date for Bridget Jones, but when it comes to employee rights, companies need to make sure they do everything to enable workers to take a full, uninterrupted 20-minute rest break.

The warning comes after Network Rail was found to have failed to take the necessary steps to facilitate full 20-minute rest breaks, despite the employee being in a role that has special provision for alternative arrangements. 

 

The case was brought by a railway signalman who was responsible for running single-manned signal boxes on eight hour shifts.  Due to train timetables, he could not take an uninterrupted break and had to be on-call when he did take a break.  As a result, he argued that he had been denied his legal entitlement under the Working Time Regulations 1998 (WTR).

 

All workers are entitled to an uninterrupted 20-minute rest break away from their usual working location after six hours of working under the WTR.  It must be known to be a rest break before it starts, so if someone has had an unexpected 20 minute gap in their day, this can’t be treated as the rest break retrospectively. 

 

If a worker is on call during a break, then it will not count as a rest break, but Regulation 24 of the WTR says that some workers will be excluded from these provisions as it may not be feasible to schedule the rest break in the usual way, but they must be allowed an equivalent period of compensatory rest.  This applies to railway workers and others such as paramedics, or lone workers such as those in a security role. 

 

Although Network Rail provided a relief signaller in some regions, they did not do so in Mr Crawford’s region and instead told him that he could take shorter breaks during his shifts “between periods of operational demand” and that these shorter breaks would add up to more than 20 minutes. 

 

At the first hearing the Employment Tribunal held that Network Rail had acted correctly and that when added together the short breaks were compliant with the requirements of compensatory rest.  But Mr Crawford appealed, and the Employment Appeal Tribunal (EAT) ruled against Network Rail.  The EAT said that if it were possible to provide workers with a full uninterrupted 20-minute break, then that should be what happens.  As Network Rail were providing the relief signalman in other regions, they must have been able to take steps to provide the same option in Mr Crawford’s region.

 

 

Said Elissa Thursfield, employment expert with Gamlins Law : “Minimum rest periods are there for the protection of health and safety and this ruling demonstrates, once again, that tribunals will not allow employers to duck out of their responsibility.  

 

“As with all terms of employment, the starting point should be a clear policy that everyone knows and understands, especially where workers are involved in environments in which pre-scheduled breaks are hard to operate, or they are working alone.  It’s important to re-evaluate regularly and see if problems are arising, and take steps to ensure that breaks are being taken.  You also need to be proactive about it, as arguing that a worker never asked for a break is not going to let you off the hook.”

 

She added: “If you have a situation where it is difficult to give workers an uninterrupted break, away from their work station, then it’s worth reviewing the position with some specialist guidance, as the alternative may be an expensive tribunal claim.”

 

Crawford v Network Rail Infrastructure Limited

 

Amazon Delivery Driver sacked for being robbed

A delivery driver who worked for an approved Amazon delivery provider, Fast Despatch Transport Ltd, has lost his job having been the victim of a robbery which saw the robber drive off in his delivery van containing more than 60 Amazon parcels.

The amount of parcels out for delivery post-Boxing Day sales may have been the premeditated target by the assailant, when he forced the delivery driver, Martyn Gilham, to the ground as he delivered the parcels to the website's customers in Coventry, West Midlands on 28 December.

But if going through the ordeal of a robbery wasn’t enough, following the incident Martyn received a text from his boss stating that they did not want to use his services anymore and, in essence, he was fired, there and then.

Initially his employer ludicrously stated that his wages would be deducted to the amount of damage that occurred to the van and for the value of the parcels inside! A spokesperson for Fast Despatch Transport Ltd has since come out and said that “that the driver will not be charged the cost of the stolen parcels” – sanity restored.

However, as per company policy, and as is “clearly explained to drivers when they start work”, “when drivers leave Fast Despatch Transport they are paid all money owed to them after a short time period which allows us to calculate outstanding amounts due, such as repair of any damage to the vehicle”.

The employer may need a sharp reminder that the delivery driver was the victim of the robbery, not the perpetrator. Any damage caused to the vehicle was caused following and as a result of its illegal possession by the robber. Victim surcharge and costs in relation to the van is surely a matter for the criminal proceedings that will inevitably go ahead when/if the assailant is caught.

One would assume that it is not the responsibility of the driver, who lost possession of the van once the robbery took place, to subsidise the actions of another which were totally out of his control whilst he was lay (potentially for dead) on the pavement.

I guess we’ll have to hold our breath and hope common sense takes over on this one…

Businesses face bigger penalties on data

Businesses face bigger penalties on data leaks 

Businesses are on final countdown to the introduction of the General Data Protection Regulation in May 2018, bringing with it tighter rules and greater penalties for data processing, and the outcome of a landmark High Court case has made the preparation even more pressing.

The case involved an online leak of payroll data by Andrew Skelton, a disgruntled ex-employee of supermarket chain Morrisons.  Skelton received an eight year conviction for offences under the Computer Misuse Act 1990 and the Data Protection Act 1998 (DPA).  However, over 5,000 current and ex-employees later joined together to bring a claim against the company itself, with the court finding Morrisons liable for the actions of its former member of staff. 

 

The data included salary and bank details of some 100,000 staff and the ruling, which is the first data leak class action in the UK, allows those affected to claim compensation for the "upset and distress" caused.

Although Morrisons has said it will appeal, experts are predicting that the judgement of vicarious liability will make General Data Protection Regulation (GDPR) compliance even more pressing for both employers and suppliers of contract labour where data processing is involved.  

 “This judgement is of huge importance, because Morrisons was held liable for the criminal misuse of third party data by an employee.  The impact extends beyond the claims for compensation from employees, it’s also the impact on reputation and the financial and physical resources involved in dealing with the data breach.  Reportedly, Morrisons spent more than £2m in responding to the misuse,” explained Elissa Thursfield of Gamlins Law (Rhyl).  “Data breach is a growing worry for a business, whether relating to employees or customers, and it is set to be even higher on the agenda in the new environment of GDPR post-May 2018.” 

Bringing in a tough new era in EU-wide data protection law, the GDPR will replace the UK’s 1998 Data Protection Act, with new powers for data regulators and much stricter operating boundaries for businesses that process personally identifiable information about individuals.

The aim is to harmonise data protection across all EU member states by making it simpler for everyone, including non-European companies, to comply, but it brings greater responsibilities for data processors and big penalties of up to 4% of worldwide turnover for non-compliance.

The biggest change is that the Directive applies to any business processing personally identifiable information about EU citizens.  This means that any UK business that is trading with EU citizens before or after Brexit will be affected, as will anyone who transfers personal data from the EU to the UK for processing or storage. 

“The Government has said that GDPR compliance will be the minimum standard in UK law post-Brexit, to enable UK companies to do business across Europe,” added Elissa.  “And anyone who hasn’t already started on the journey towards GDPR needs to do so as a matter of urgency, as every business and organisation is affected, however small, and must be able to demonstrate they are complying, not just dealing with problems after they occur.  While it’s likely that most will need some specialist expertise on the legal technicalities  and IT processes, as a starting point there is some excellent preparatory guidance on the Information Commissioner’s website.” 

GDPR provides stronger protection for individuals in terms of consent.  In place of the previous ‘opt out’ approach, organisations will have to secure positive consent from individuals for their data to be collected.   The consent can be withdrawn at any time, as individuals have ‘the right to be forgotten’ and can also transfer their data elsewhere if they choose.  Where data is to be processed for a purpose beyond that for which it was originally collected, there will need to be fresh consent.  There are strict rules around data relating to children under 16 and requirements for parental consent.  

The organisation will also have to provide more information about how data will be used and how long it will be kept for, as data must not be held for any longer than necessary.  If data will be stored outside the EEA, details must be provided, including what safeguards will be in place. 

There is a distinction between controllers and processors of data.  The controller determines the process and means of processing personal data, where a processor acts on behalf of the controller.  However, each has obligations in the event of a breach or lack of compliance.  For an organisation that sub contracts its processing, there is a high duty of care imposed in selecting their data processing provider with procurement processes to be followed and regular ongoing reviews once appointed. 

Under GDPR there will be a statutory obligation to notify the regulator – the ICO in the UK – of any breach, if an individual’s personally identifiable information is at risk as a result.  Fines can range up to a maximum of €20m, or 4% of total worldwide turnover for businesses, for serious contraventions. 

 

Various Claimants v Wm Morrisons Supermarket PLC [2017] EWHC3113 (QB)

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

Is this the end of forgetting your fob for work?

Is this the end of forgetting your fob for work?

 

A Wisconsin-based tech company, Three Square Market (TSM), has recently become one of the first in the world to microchip its staff. The idea behind the scheme is to remove the need for company security and identity cards. But is this a cost saving exercise that has gone too far?

 

All of the staff who have had the microchip inserted between their thumb and forefinger have agreed to such level of intrusiveness, with 50 out of 80 members of staff who work for TSM saying yes. The microchips allow employees to check into work, log onto computers, open secure doors and buy company food and drink.

 

The only saving grace is that the chips do not have GPS capabilities and therefore the company cannot monitor the locations of their employees. But surely this is a legal minefield, and for what, convenience purposes? – what happens if the employee withdraws consent? The employee leaves the company? If the chip is implanted negligently? Causes infection? Alternatively this could be the kind of treatment millennials can expect in the 21^st century workplace. What is wrong with the normal facial/eye/fingerprint recognition system some companies have (only just) become use to.  

 

However, there is always fear when new technology comes to fruition and microchipping is no different. But rather than scaremongering, do we have a responsibility, as an employer, to be as efficient as possible? We should balance these technological openings while mitigating their risks. If Regulators make sure the software the chips are loaded up with have strong privacy protections that can be controlled by the employees being able to log into their microchip and control whether the data it holds is public or private, then this could even be a new monitored and regulated industry, creating new jobs in this field. Nowadays everybody carries a phone around in their pocket 24/7 which tracks more data then we are aware of, so is this just employers jumping on the bandwagon?

 

Although I can’t see it taking off, it is definitely something to look out for employers considering in the near future on our side of the pond.

Chancellor announces get-fit regime

An extra £3 billion to prepare for Brexit over the next two years and a vision of an economy that is ‘fit for the future’ were at the heart of the Chancellor’s Autumn statement.

And despite downgrading growth and productivity forecasts, after public sector net borrowing hit £8bn in October, Philip Hammond announced a raft of new investments.  Alongside the £3bn set aside for Brexit, he plans to inject £6.3bn into the NHS and £500m to support emerging technological development, such as Artificial Intelligence.

§  Growth forecast for 2017 downgraded from 2% in March’s budget to 1.5%

Housing is also in the spotlight, with £15.3 billion new financial support for house building over the next five years, with the Government setting aside £1.2 billion to buy land and £2.7 billion for related infrastructure.  The Government also announced plans to create five new so-called ‘garden’ towns, and a headline-grabbing cut in stamp duty for first time buyers.

Stamp duty is currently paid on property purchases over £125,000, with a ‘slice’ tax where buyers pay at the relevant rate for each band, rather than a flat rate across the whole amount.  With immediate effect, stamp duty is abolished for first-time buyers on properties worth up to £300,000, or on the first £300,000 of a property worth up to £500,000.

Ben Talbot, our tax expert's view is:  “The change in stamp duty has caught most of the attention.  It’s certainly a move that will be welcomed by first time buyers, but does add yet more complexity to the application of this particular tax, where we already have different rates for second home owners and landlords.

“Buyers need to read the small print before rushing out to make an offer, as there are clear distinctions on who is eligible.  It will not apply if any property has been owned at any previous time, whether here or anywhere else in the world, and it must be the only or main home for the buyer.  In a joint purchase, everyone would need to qualify as a first-time buyer.  Buyers will need to check out the detail with their solicitor, and the benefit must be claimed when the Stamp Duty Land Tax return is made to HMRC during the purchase process.”

For the NHS, £3.5 billion of new funding has been made available for upgrading NHS buildings and improving care and a further £2.8 billion has been set aside to support improvements in A&E performance and to reducing waiting times for patients.

For individuals, the basic-rate income tax threshold will rise to £11,850 in April 2018, up from £11,501, and the higher rate threshold will rise from £45,001 to £46,350.  Alongside, the National Living Wage, paid to those aged 25 and over, will increase from £7.50 per hour to £7.83 per hour from April 2018, while the National Minimum Wage will also increase:

21 to 24 year olds	18 to 20 year olds	16 and 17 year olds	Apprentices
£7.38 per hour	£5.90 per hour	£4.20 per hour	£3.70 per hour

 

In areas focused on supporting small business, the switch to link business rates to the Consumer Price Index, instead of the Retail Price Index, has been brought forward by two years, with the Government saying businesses will save £2.3bn as a result.  There will be retrospective legislation to tackle the so-called ‘staircase’ tax, which had affected the business rates bill for many small businesses in communal offices, with those having more than one office linked by a communal lift, corridor or staircase being charged more. 

Also, the VAT threshold at which registration is required will remain at £85,000, but alongside there will be a crack-down on VAT evasion online, with greater powers to make online marketplaces responsible for the unpaid VAT of their sellers. 

Other initiatives to tackle avoidance and evasion risks will see new technology for HMRC; new global rules to force the disclosure of certain offshore structures to tax authorities; and a change to international corporate tax rules to ensure globally-operating digital companies pay a fair amount of tax.

He added:  “As with the Chancellor’s previous statements, his eye is very much on managing the economy through the coming Brexit negotiations and the country’s exit from the European Union.” 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

 

 

Peanut Allergy Leads to Conviction of Manslaughter

Peanut allergy leads to conviction of Manslaughter

Eating establishments must be very careful to provide training and supervision to their staff as to the ingredients used in their meals.  The tragic case of R v Zaman illustrates the possible consequence of failing to do so.

Dafydd Roberts, criminal and regulatory solicitor for Gamlins Law comments that ‘the duty is firmly placed on the restaurant, café or pub to get it right; the consequence of not informing your customers of any particular ingredient to which they are allergic can be tragic to the customer and also very serious for the proprietor and management’.

R v Zaman

On 30 January 2014, Paul Wilson was found dead at his home in North Yorkshire. He had spent the afternoon drinking with a friend, before buying a takeaway meal from the Indian Garden Restaurant, Easingwold, which he took home and started to eat. Mr Wilson suffered from an allergy to peanut. The waiter from whom he had ordered the meal had specifically stated that it contained no nuts. Unfortunately, the meal contained substantial amounts of peanut, causing Mr Wilson anaphylactic shock, which ultimately led to his unfortunate death.

The Appellant Mohammed Khalique Zaman owned the restaurant. On 23 May 2016 in the Crown Court at Teesside he was found guilty of the manslaughter of Mr Wilson (together with a further six charges of contravening various food safety requirements. The Defendant was sentenced to six years’ imprisonment.

Mr Zaman later appealed against his sentence to the Court of Appeal in London.  The Appeal Court has now held that the mitigation of Mr Zaman’s hard and successful work has necessarily to be discounted by the fact that his working practices were not short of appalling, and in any event any mitigation has to be balanced against aggravating factors.

‘In our view, Mr Zaman’s negligence in this case was not just gross; his behaviour, driven by money, was appalling. Given the very serious aggravating factors, even though the Appellant was a man of good character, we are wholly unpersuaded that a sentence of six years after a trial was manifestly excessive or, indeed, excessive at all’.  The sentence therefore will stand.