We are a local authority taking disciplinary action against a member of staff on the grounds that he has fraudulently taken money due to the council. He wants access to his computer files so that he can defend himself. However, we want to stop this as we fear he may be able to tamper with the evidence. We are also worried about the time the investigation is taking.
We had a similar case at Lambeth Council, but you’ll be pleased to hear that our decision not to allow access to electronic data systems was upheld by an employment tribunal.
The fraud came about when the officer took a cash payment for work done by the council’s highways team. Two internal investigations concluded there was a case to answer in relation to the alleged fraud against the council. Disciplinary action was then taken, which led to his dismissal for gross misconduct.
The officer said he couldn’t defend himself without having access to his electronic data files. We were not prepared to allow him access, but arranged for him to attend a separate office where he could go through his paper documents. In addition, we offered to print any electronic files he wanted for his defence.
In considering the fairness of our process and decision to dismiss, the tribunal was satisfied that these fell within the band of reasonable responses that a reasonable employer might have adopted in accordance with the principle in Iceland Frozen Foods v Jones.
Like you, we had been concerned that the time needed to investigate the fraud would affect our case at the tribunal. We needed to look at records going back months and, as a result, the investigation took longer than the timescale recommended by Acas as good practice. But the tribunal found in our favour and accepted that it was necessary for a thorough investigation to be carried out, given the nature of the misconduct.
This is an important ruling as many authorities may have been deterred from taking action because they felt the length of the necessary investigation might count against them.
Your next step should be to investigate the suspected fraud as close to the sources as possible. This will ensure an efficient investigation and that the purity of the evidence is maintained. Consider suspending the employee during the investigation.
Once this is complete, set out in writing to the employee the alleged conduct, characteristics or circumstances which led you to contemplate dismissing or taking disciplinary action, and invite them to a meeting to discuss the matter. The employee must be given an opportunity to make representations in defence of the proposed action and you should offer a right of appeal against any decision taken.
By Nadia Okraku, employment lawyer, Lambeth Council