Theft in the workplace: how can you prevent it?

Whether it's a can of soda from the cafeteria or a grab from the cash register, stealing something from the boss is illegal. Yet theft by staff is common. Moreover, it is a common reason for summary dismissal. So what can you do as an employer to prevent theft as much as possible?

Policy

First, it is important that employees are aware of what the employer may and may not do. Even though it goes without saying that you are not allowed to steal, as an employer you had better have that in writing as well. For example, you can include in an (existing) company regulation or personnel manual a provision stating that the employee may not take company property without permission, even if that property has little or no value. You can add that there are also consequences if an employee does take company property without permission - such as summary dismissal.

This way, an employee is more aware of the boundaries within the organization and these rules are a warning beforehand. Suppose you subsequently "catch" an employee and summarily dismiss him, you as an employer have a stronger position. This is because the employee knew, or at least should have known, which rules within the organization are important. The court will in such a situation charge the employee more heavily (during possible proceedings) if he deliberately chose not to abide by the applicable rules.

Camera surveillance

A second tool is the use of cameras. With this, however, caution is required. This is because filming personnel violates Article 8 ECHR, which protects the private lives of individuals. Employers may therefore not simply use cameras. Moreover, with the advent of the General Data Protection Regulation (AVG), the privacy rules have been further tightened. Failure to comply with these rules can result in large fines.

Employers are allowed to use permanent cameras in some cases. However, this must serve a major interest, such as preventing theft. The employer is then obliged to clearly announce that cameras are being hung. He can easily do this for visitors by hanging signs in the premises, for example. With respect to staff, the employer has more responsibilities and it is advisable to draw up a policy (also) on camera surveillance. This is because all employees must be aware that they may be filmed. The works council must agree to this policy. If there is no works council, at least the staff must be informed about the use of cameras.

The policy should include what is being filmed, why it is being filmed, who has access to the camera footage, how long it is kept, and who within the organization is the point of contact for camera surveillance. To minimize the infringement of employees' right to privacy, it is important to focus the camera(s) specifically on the place where the theft is likely to occur, such as a cash register. For example, a camera in a restroom or locker room is not allowed in most cases. Also, the camera should not make audio recordings, as this is not necessary to achieve the goal (deterring theft).

There is also a requirement that hanging cameras must be necessary. This means that the employer cannot achieve the goal of preventing theft in any other way. This could include gate control, mandatory use of lockers or a ban on bags in the workplace. Furthermore, the camera images may not be kept longer than strictly necessary (as a rule, this is four weeks).

Monitoring email and internet usage

Another way to deter theft is to monitor employees' e-mail and Internet use. The employer should also include this in a policy. This should show when control of e-mail and Internet use takes place and what is and is not allowed. Establish the purpose of the policy. Is there a works council? If so, it must give its prior approval to this policy.

Furthermore, the manner in which employees are monitored should be done in the least intrusive manner, just as with camera surveillance. For example, by means of random monitoring or only monitoring if there is a concrete suspicion of wrongdoing, rather than permanent monitoring.

What if an employer does not comply?

If an employer makes careless use of camera surveillance or abuses the monitoring capabilities of e-mail and Internet use, it runs the risk that the evidence will be disregarded in any legal proceedings because it was illegally obtained. A dismissal (with immediate effect) may thus be called into question. Judges must then weigh two interests. On the one hand, the social interest of establishing the truth and the employer's evidentiary interest and, on the other hand, the interest of excluding evidence and the employee's right to privacy. In practice, this balancing of interests is often (still) in favor of the employer, which can lead to the situation that the illegally obtained camera footage is admitted as evidence after all.

This is without prejudice to the fact that the Personal Data Authority may nevertheless impose fines because the footage was processed in violation of the AVG, or the employee in question may seek damages in new proceedings for the employer's failure to comply with the AVG.

Resume

In practice, placing cameras, monitoring e-mail and Internet use and having a written policy prohibiting theft seems to be the most logical step in combating theft in the workplace. Keep in mind, however, the conditions set forth by the law. This is because an employer's failure to comply with its obligations under the AVG could result in large fines and/or the exclusion of evidence.

Finally, it is important that effective action be taken in the event of theft, for example by summary dismissal and/or reporting it to the police. The consequences of the behavior of the employee in question generally also has a deterrent effect on the rest of the staff. By taking action against theft, it is clear that stealing is not tolerated within the organization and there are consequences if the employee does so anyway.

If you have any questions about this or would like to spar about ways to combat theft within your organization, please feel free to contact me or my colleagues.