"Theft is theft. So sack 'em" – Right?

How many managers have forthrightly stated this at one time or another. Theft is a severe offence and is normally viewed as gross misconduct at work. The outcome is pretty clear (after the obligatory disciplinary procedure).

Take the case of the theft of a laptop from the office. It’s high value; the evidence is caught on CCTV; there’s reliable evidence to suggest that the employee sold the laptop at the local car boot sale. So unless they can provide any other explanation at disciplinary interview, then most managers would conclude that the outcome is dismissal.

However consider making personal phone calls, or accumulating those company pens at home. These are also acts of theft, aren’t they?

Employment Tribunals use a test when deciding cases: “Has the employer acted fairly and reasonably in all the circumstances?” Managers have to decide where fairness and reasonableness lies. At what point do personal telephone calls become a potential disciplinary? 3 calls a day? 5 calls a day? Or, in the case of one company, the employee made personal phone calls for over half of the working day. Sometimes the standards applied have to be judged for fairness and reasonableness, and decisions made that consider all the circumstances.

The decision to discipline for any misdemeanour, and the subsequent outcome, may be influenced by a number of these circumstances:

 

·         Has employee been told about this behaviour informally and the importance of doing it properly? (particularly around performance issues)

·         What is the severity of the ‘offence’? What is the effect of the behaviour on customers; the team; the company?

·         Has employee been performance-counselled? (not essential however is good practice, particularly in the case of performance/capability):

        –       Meeting been held?

        –       Notes on file?

        –       Action plan agreed?

        –       Reasonable time scales applied for improvement?

        –       Put in writing to the employee?

·         Is the behaviour out of character? e.g. they’re going through a traumatic divorce so are emotionally stressed

·         Is it a first offence?

·         How old is the employee? e.g. an immature 17 year old employee horse-playing in the office

·         What is the employee’s length of service?

·         What training have they had?

·         Are there any mitigating circumstances?

·         Any similar cases happened before? How were they dealt with?

Even with the laptop theft, what happens if the employee says they are on medication that has a known side effect of causing irrational behaviour? It just goes to show that the background and circumstances to every case has to be considered. Theft may not be theft in every case!

NOTE: The above article is an edited extract from our 1 day Disciplinary Skills course material. These notes should be checked and verified by your organisation’s legal team and/or Human Resources team prior to re-circulation to ensure they comply with your disciplinary procedure. While every care has been taken in compilation, ABC Training Solutions Ltd cannot be held responsible for any errors or omissions; the notes are not intended to be a substitute for specific legal advice. ABC Training Solutions Ltd cannot be held responsible for any effect caused by the use of this resource.

Bryan Edwards is Managing Director of ABC Training Solutions Ltd (www.abctrainingsolutions.biz) which delivers training and markets a range of fully-designed, ready to deliver workshops, self study packs and other training exercises for the busy trainer. He can be contacted on 07747 602215 or info@abctrainingsolutions.biz