An employee left the company two weeks ago and so far she has failed to return her company laptop, despite several requests. We have left two or three phone messages, which she has ignored. What action can we take to get it back? We still owe her outstanding salary, which is due to be paid at the end of the month. Can we withhold her salary to compensate for the loss of the laptop?
Your starting point is to check your employee’s contract of employment to see if there is a return of company property clause and, in particular, a clause that enables you to make deductions from her final salary payment in the event that company property is not returned.
It is only possible to make a deduction from the employee’s salary to cover the cost of the laptop if either there is a specific clause in the employee’s contract that permits you to do so in such circumstances, or she has signed a written agreement signifying her consent to the deduction.
Even if there is a clause or agreement, it must have been drafted in such a way that it represents a genuine pre-estimate of the loss you are likely to suffer as a result of her failure to return company property. It must not act as a penalty on the employee because penalty clauses are unenforceable. In this case, it is likely the clause will have to restrict the deduction that can be made from salary to the second-hand replacement cost of the equipment.
If there is no appropriately drafted clause or agreement, your legal recourse is to make a claim in the county court against her for trespass to goods. If there is a clause, but it does not permit deductions to be made from salary, again your recourse is the civil courts and an action for breach of contract and/or trespass to goods.
Note that you can only claim damages for actual financial loss damages are not awarded for inconvenience. Before issuing legal proceedings, you should write a letter to the employee demanding that the laptop be returned within, say, seven days, failing which you will issue proceedings without further notice.
One final option would be to report the matter to the police to see if they are willing to investigate. Unfortunately, the police will normally say that this is a civil matter on the basis that you provided the laptop at the outset, meaning there was no dishonest appropriation of it. Nevertheless, it is worth adding into your letter that you also intend to report the matter to the police. In many cases, this will be a sufficient threat to ensure the laptop’s return.
Claire Birkinshaw, solicitor and legal information manager, Abbey Legal Protection