“Volaw Trust” - A strengthening of the privilege against self incrimination from requests for pre-existing documents?
Workplaces can present some unscrupulous employees with the opportunity to commit crimes, ranging from the theft of company property or colleagues’ belongings, to false expenses claims or fraud against valued clients. All these acts involve dishonesty and a gross breach of trust.
The impact of employee crime in the workplace cannot be understated. It is deeply damaging both to those staff and managers who placed their trust in the offender colleague and also to the public and valued clients who placed their trust in the business.
Terminating an employee's employment for gross misconduct in such circumstances removes the dishonest employee from the workplace and punishes the individual to a certain extent financially, because his or her employment is terminated with immediate effect without notice or payment in lieu of notice. However, it may not necessarily act as a deterrent to other colleagues in the workplace, as the background to the employee’s termination is likely to be kept confidential by the employer. Often employees will resign voluntarily before an internal investigation and disciplinary process is completed, so that no adverse disciplinary finding is made against them and put on their personnel record.
Given that most companies provide standard references on termination, confirming only job title, salary and dates of employment, a new employer will not be protected from recruiting a dishonest employee. Termination alone will not necessarily stop the perpetuation of the dishonest behaviour. It merely removes it from one workplace and potentially transfers it to another.
If criminal conduct is discovered in the workplace, it is essential that management takes swift and effective action. Typically employers carry out a number of steps: an investigation by HR, disciplinary action, possibly ending in the dismissal of the offending employee. In more serious cases, where the amount of money involved is significant or the crime is committed over a lengthy period, the police may need to be involved.
If a company also wants a criminal punishment to deter others from such conduct and, ideally, financial compensation, then there is another course of action – a private prosecution. This is growing in popularity as a legal remedy to help achieve these goals. A number of organisations have already used private prosecutions to demonstrate their zero tolerance attitudes to dishonesty in the workplace, for example, Royal Mail is known to prosecute employees for high value thefts. Credit companies also feature in this area, for example, Provident Personal Credit Ltd successfully prosecuted a loan manager for offences against the Fraud Act 2006 and the Theft Act 1978.
A private prosecution can be started by any individual or company and can provide victims of crime with an alternative way of accessing justice when the traditional state prosecution agencies are unwilling or unable to assist (section 6(1) of the Prosecution of Offences Act 1985). It can be effective where the primary motives for legal proceedings are to deter others and to bring the offender to justice. It can also be a more effective way to recover a loss in circumstances where, due to the passage of time or the offenders having limited means, it is impractical to begin civil proceedings against them. At the conclusion of a successful prosecution, the private prosecutor may seek to start confiscation and compensation proceedings to take away the proceeds of their crime from offenders.
Using the private prosecution route allows a court to make an order awarding the private prosecutor (here, the employer) costs, irrespective of the result of the prosecution and generally the employer is not required to pay the defendant’s costs, provided it can demonstrate that it has acted in good faith and the proceedings were not improper.
This article was first published in People Management in December 2015.
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