I manage a team of 15 employees at a council office. Last month, £8,000 went missing and I’m convinced one or more of the staff were responsible. I have not been able to identify the culprit(s) so want to discipline the entire team. How far can I take this, and what risks would this course of action leave my employer and myself open to?
Theft is generally considered as serious misconduct justifying dismissal. Although other factors such as length of service and an unblemished record can be taken into account, in this case considering the large amounts of money involved, where a reasonable explanation cannot be given, this conduct would fall within gross misconduct.
Before any further steps are taken you need to ensure you have conducted a thorough investigation to avoid falling foul of the Burchell principles (ie, having reasonable belief in the employee’s guilt based on reasonable investigation). As a result, a perfectly plausible explanation may emerge or, alternatively, it may narrow down the possible list of culprits.
If, despite a full investigation, you cannot discover who is to blame, it is an established principle that it may be fair to discipline all the suspects and even to go as far as dismissing them. However, in this particular scenario, you could face claims of constructive dismissal if you discipline all 15 employees by issuing them with written or final written warnings, and potentially claims of unfair dismissal if you were to dismiss all 15.
You need to hold reasonable suspicion and where you do not have reasonable conclusive proof that one of those disciplined is actually guilty, reasonable suspicion will not be applicable – especially if one of the staff can establish that they could not possibly be guilty because they were on annual leave or at an external meeting. Harsh disciplinary action would be viewed as excessive, and also would not make commercial sense.
There is no reason why you could not warn the whole team or those identified as possibly having been involved that if the guilty person does not own up, they will all be subject to a disciplinary procedure and may face dismissal. If no-one owns up, you could then follow the procedure to see whether your findings help you identify the individual(s). If not, you may have to leave it to a police investigation, which will have wider powers to search.
Shiva Shadi, employment partner, Davis Blank Furniss
