In this Determination the Tribunal (heard on 25/2/14) has made particularly useful and clear comments that can be used as directions for such investigations where theft is being considered as follows.

“It is important to recognise that investigative and disciplinary procedures that might be sufficient in one instance may not be in another, particularly in a case w[h]ere criminality is on the agenda. Where there is a possibility of a finding being made by an employer that an employee has stolen goods, particular care must be taken.” …

… “Having considered the totality of the evidence, the Tribunal is of the view that the investigative and disciplinary processes undertaken in this instance fall short of the appropriate standards where an employee faces potential dismissal for criminal behaviour.”

Clearly, the EAT is making the point that where a person is to be found guilty of what is after all a criminal offence the bar will be set particularly high for an employer to show their processes were fair when investigating.

While checking CCTV on 30/09/11 in respect of alleged missing mass card monies, SK noticed that the claimant was breaching company policy by using her phone and taking items from the shop and not paying for them. She, the claimant, was called to a meeting the following day. She was not told that she could have a representative at the meeting.

The claimant was subsequently on sick leave until 19/1/12 and on 20/1/12 she was invited to a disciplinary meeting to show her some of the CCTV footage. SK had reviewed 10 days of CCTV footage. She was informed this time that she could have a representative with her. She did not deny taking bottles of drinks or snacks but asserted she had paid for them. Therefore 6 her assertion was that she had “appropriated” the drinks and snacks but there was no “intention to deprive the owner” because she had paid for them. She was told she could view the CCTV footage at work even though she was suspended and that she could view the till reads at SK’s home.

At a further meeting the claimant was told CCTV showed her on the phone in front of customers and that for every day of footage there were items she had not paid for. She asserted that she had laser receipts for them and it appears she ultimately produced 3. The CCTV could not be downloaded as it was an old system. The claimant was suspended on full pay pending the conclusion of the investigation.

A final meeting was held on 18/02/12 when the claimant was told if she had nothing further to add she was being dismissed for theft which came under the heading of gross misconduct in the respondent’s policy. There was no provision for an appeal.

As an aside, there was some brief consideration of whether the respondent was attempting to ‘find’ something to use to terminate the employment because the premises where the claimant was working at the time of her dismissal was discontinued shortly after her dismissal.

Case Learning Points

The EAT was critical of many aspects of the respondent’s processes and the case is also reviewed on our website. Here, I have only focused on the issues relevant to this article.

• The claimant did not receive details of the precise charges against her in writing at the outset and the basis for them. The Tribunal was particularly exercised by the fact that the respondent was actually accusing the claimant of theft but calling it a breach of procedures. The claimant asserted that the words “theft” and “stolen” were not used at the meetings.
• No clear distinction or separation between the investigation and disciplinary processes. In addition these were conducted by the same people. While this may cause problems in a small organisation in this case the Tribunal felt it could have been achieved.
• The Claimant was not given all of the evidence against her nor was she given an appropriate opportunity to consider it or adequate time to prepare her response. The Tribunal was critical of the respondent offering the claimant access to view the footage at work while she was suspended and particularly exercised by the requirement for the claimant to call to SK’s home to view the till reads that allegedly supported the CCTV. The Tribunal makes a very clear statement that can be used as a direction to employers as follows: “Any records of documentation used by the respondent in its investigation should have been presented to the claimant at the disciplinary meetings.” … “The Tribunal would have expected not only CCTV but also corresponding ‘till receipts’ and stock figures to be put to the claimant.”
• There was no clear agenda for meetings. This means that the claimant was invited to meetings without knowing what was to be discussed. This is a particular difficulty as she was therefore not made aware of the topics she would be required to address or to answer.
• The employer made the argument that, as a supervisor, the claimant was required to implement policies with other staff.
• The claimant had not been given the specific allegations against her in respect of exactly what she was accused of i.e. theft, never mind what specific items she was accused of taking and when. She was invited to watch the CCTV but it was not downloaded and given to her. In terms of our test above, she was not told exactly what she had taken and at what time. The footage was available to her but the Tribunal was not satisfied with the circumstances of this in addition to the requirement for the claimant to attend at her employer’s home to see the till receipts.
• So she was not provided with the totality of the information relating to the ‘property’ at issue and she was not shown all of the information that allegedly established that she ‘appropriated’ the property particularly all of the CCTV footage. In addition, there was limited consideration of her assertions that staff took drinks and snacks and paid 7 for them later, sometimes the following day. So without the evidence of other staff and the till receipts supported by CCTV indicating non-payment it is difficult to see how the employer could show she ‘intended to deprive’ it of the property.

In conclusion the Tribunal found that the investigative and disciplinary processes did not meet the standard expected where an employee is accused of being a thief, that she had been unfairly dismissed and awarded her €11,000.