Handling allegations of criminal behaviour in the workplace

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Crime is not just something that happens outside of working hours and away from working premises

Pilfering, stealing and other such crimes can happen in the office or warehouse too. But what happens if an employee accuses a colleague of not just breaking company rules but breaking the law?

The employee handbook might be of relevance here. Businesses may wish to implement a whistleblowing policy to help encourage a culture of transparency and accountability. A well-written policy can help employees to report alleged criminal activity as soon as possible, in the knowledge that their concerns will be taken seriously and investigated and that their confidentiality will be protected.

Raising the alarm

In many instances an employee who has witnessed a co-worker committing a crime or believes that a crime may have been committed will be able to raise it as an issue informally with their line manager. This is often the preferred route in which concerns can be dealt with quickly and, if appropriate, elevated up the chain of seniority efficiently.

In other cases, perhaps where an employee does not feel comfortable reporting their concerns to a supervisor or if the alleged wrongdoing relates to the line manager themselves, the matter may be best resolved under a whistleblowing policy.

Confidentiality

Whistleblowers should feel confident that they are protected throughout any ensuing investigation from victimisation or dismissal.

Employers should respect a whistleblower’s request to keep their identity anonymous, but this can impede a proper investigation taking place. For example, if an employee witnesses a colleague helping themselves to company property, in the absence of hard proof by way of CCTV it would not be possible to carry out a full investigation without obtaining further information from the whistleblower.

Some requests for confidentiality will also be impermissible by law – for example if the reporting of an allegation becomes a criminal matter investigated by the police. Such an issue would be outside of the employer’s control and an employee may be required to provide a witness statement notwithstanding that they initially wished to remain anonymous.

Procedure

Following a disclosure of possible wrongdoing an employer should carry out a preliminary assessment to consider the scope of any investigation. If an employee has reported publicly they may be invited to attend additional meetings to assist the employer in its enquires.

Although there is no statutory right for an employee to be accompanied to a meeting to discuss their disclosure it is recommended to include such a right within the whistleblowing policy so that an employee can call upon that support. The whistleblower should be informed that the allegation(s) will be investigated and dealt with fairly and in as timely a fashion as possible. As the process goes forward external experts may be appointed if the subject matter (e.g. fraudulent expenses) is outside of the investigator’s expertise.

Employers should also bear in mind data protection compliance, an in particular the difficulties of ensuring the complainant’s rights are weighed against the privacy rights of the alleged wrongdoer. An individual will be identified if subject to a report about a potential crime such individual has committed (whether informal or formal); this will necessitate the processing of the individual’s sensitive personal data under the General Data Protection Regulation. The individual should be told of the complaint and the identity of anyone who will receive personal data about them because of the investigation, unless there is a significant risk that this will prejudice the investigation.

Once the allegations have been properly investigated it would be up to the investigator to confirm whether it makes any recommendation for the alleged wrongdoer to be subject to disciplinary action or not. In the hypothetical of an employee alleged to have committed a crime it is at this juncture that the employer would determine (if it hadn’t already done so) whether a criminal referral is appropriate.

False/malicious allegations

It is essential that organisations do their bit to put off malicious and false allegations. The whistleblowing policy should make it clear that if an employee is found to have knowingly made a false or malicious allegation against a colleague they have a personal grievance with this would likely be treated as gross misconduct.

Daniel Stander is an employment lawyer at Vedder Price

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