This is Part I of a series of what to do, and what options you have. The options are a non-exhaustive list. There are many options to consider, depending upon the size of the business, and politics within that business, the characters involved, and the size and extent of the stealing.
Who are you? What is your position in the business?
If you are a fellow colleague: Tell your line manager. Don’t keep it to yourself. What if you are the only other person who knew about it, and you said nothing? When this later comes out, you may get caught up, as part of the problem, and by association, you may be accused of the same thing. Either way, keeping it to yourself shows a lack of responsibility and loyalty to the business you work for. If you were the boss, you would expect your staff to tell you.
If you are a line-manager: Tell your next in line. If there is no next in line, notify your Human Resources Department. If there is no such department because your business is too small, tell the owner of the business. You are in a position of responsiliblity. You can not turn a blind eye. You must take notes of when something was said, by whom, and what was said. Make a hand-written note, rather than to record it on an office computer. Emails and notes in such circumstances, become lost, or become corrupted. You do not know who is reading or tampering with your emails.
If you are the boss: Act in a measured way. Open a file. Take detailed hand-written notes, for the same reason as above. Limit the exposure of this new information to those closest to you. Do you have electronic monitoring policies in place? How about CCTV cameras in the office, and in the car park?
Your immediate job is to stop the stealing, gather evidence, and take action.
Who do you tell?
Whoever you are, limit who you tell. Do not gossip. Pass the information down the line of responsibility.
What if the person with responsibility takes no action?
Is there a whistle-blowing policy in place? If so, there will be a procedure to follow as to whom next to tell, resulting in the Authorities being notified.
What if there is no whistle-blowing policy in place? Entrust someone with responsibility above the person you normally would tell. If you think they are involved with the person stealing, and there is no one else to tell, Employment Law should protect you for whistle-blowing and notifying the Authorities.
The Employment position:
Check the alleged wrongdoer’s contract of employment. Consider taking legal advice outside of your own office. The objective is to stop the stealing. The 2nd objective is to consider suspending the alleged wrongdoer subject to carrying out a full investigation, and then to comply with your procedure and Employment Law.
Do you challenge or ask questions of the alleged wrongdoer?
You need to proceed carefully. Asking questions of someone, accusing them of committing a criminal offence, may require you to comply with the Police and Criminal Evidence Act 1984. Seek legal advice on this.
Has an offence taken place?
Probably, yes. Stealing from an office may be an offence contrary to the Fraud Act 2006, and/or the Theft Act 1978, and/or the Bribery Act? You have a civil duty to report a crime.
What if the Police take no action?
Are they taking no action because they lack the resources? That does not excuse the offence. You should distance yourself from the wrongdoer, and if that is not possible, you should consider parting company.
Are they taking no action because they say it is a civil matter? If so, that does not excuse that it is a criminal offence. Again, distance yourself from the wrongdoer, or consider leaving.
That may be the case for a fellow colleague and a line-manager. What if you are the boss?
The concern is that if you do nothing. What message does this give to other members of staff? Do you want to give the message to others, that they could also steal from you without consequence?
Can you take a Civil case against the wrongdoer?
Yes. There are a variety of options open to you in Commercial Fraud in England, which include bringing a claim for monies had and received, and interference with business.
Can you take a Private Criminal Prosecution against the wrongdoer?
Yes. Possibly. This is dependant upon satisfying the evidential and public policy tests as set out in Crown Prosecution Service guidelines. The quality of evidence necessary in criminal cases, and the evidential burden to satisfy, is considerably higher in criminal than in civil cases. In criminal cases, you have to prove the case beyond all reasonable doubt. In civil cases, you have to prove your case on a balance of probabilities.
Next week: Part II: Why is someone stealing in my office? What do I do?
Professor David Rosen is a Solicitor-Advocate, Partner, and head of Litigation at Darlingtons Solicitors LLP. He is a Certified Fraud Examiner, Strategic Director of the ACFE UK Chapter, a member of RUSI, a working member of the Fraud Advisory Panel, and an associate Professor of Law at Brunel University where he specialises in commercial fraud and criminal fraud.
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