The issues of criminality when hiring - and firing - staff...

How do they do it?

The first step is to note the risks, which can include failing to ring in a sale and pocketing the cash, ringing in a cheaper product, but serving something more expensive, deliberately making mistakes which are then consumed, and hiding cash and products in drinks containers that are removed from the premises.

Why you need to know about staff theft​

Everyone knows it happens — there are enough headlines to prove the point — but actually finding statistics on the level of staff-based theft from pubs is nigh on impossible. There’s nothing available from the British Institute of Innkeeping nor from the British Beer & Pub Association.

So to get any feel for the statistics means a look at the news headlines.

Take the case of Carole Gamble who, in January 2014, was convicted of taking £10,000 in a bar-fiddling scam at Leicester’s Saffron Lane Working Men’s Club. The steward of the club had noticed that stock and takings were dropping significantly. He had CCTV installed and found that Gamble was frequently hitting the ‘no sale’ key on the till. The actions of the 49-year-old almost destroyed the club — she was jailed for nine months.

But the case of Gamble pales in comparison to the alleged theft of £25,000 by Stephen Tims from the Waggon & Horses in Lymington, Hampshire. Tims went on the run in December 2014 and was found in Surrey at the end of April. He’s been charged with failing to surrender to police and theft by employee.

With this in mind, how should pubs deal with ‘insider’ criminality?

Three ways to protect your business

1) Request background checks​

Some employers require prospective employees to make a subject access request to obtain a copy of their full criminal record, which is then given to the employer (enforced subject access).

However, from 10 March 2015, when section 56 of the Data Protection Act (DPA) came into force, enforced subject access became a criminal offence. This could entail a potentially large fine and/or personal criminal liability for senior employees. The objective is to stop excessive access by employers to protected records.

Note that the offence applies to employees, office holders and where engaging non-employees under contracts for services.

Employers should ensure they comply with the DPA when recruiting for any post because criminal records are ‘sensitive personal data’ and subject to various safeguards.

Frances Butler, from law firm Eversheds, says that, practically speaking, it is best to request information once an applicant has been chosen for the post by making the job offer subject to background checks. Requesting information from all applicants early in the recruitment process may be deemed excessive and disproportionate.

2) Have upfront conversations about their background​

Many employers’ first instinct on discovering a criminal past would be to reject an applicant as unsuitable, but Butler says it may not be appropriate to do so.

“An employer’s approach should depend partly on the nature of the vacancy,” she says. “In general, however, an employer is expected to use judgment and consider a number of factors.” She lists these as being whether the conviction is relevant to the post; how serious the offence was; how much time has passed since the offence was committed; whether individual’s circumstances have changed; the context of the offence; the individual’s explanation and if are there any other relevant matters.

One recommendation from Butler is for employers to steer away from having a blanket ban; instead they should assess the risk with regard to their business and the specific role.

From her point of view, employers need to consider other ways of assessing individuals’ suitability, such as checking qualifications and references, ensuring application forms and interviews are fit for purpose and making effective use of probationary periods.

Butler advises that if the vacancy is not for an excepted post, employers must disregard any spent convictions, even if voluntarily disclosed. Unspent convictions should be considered and discussed with the individual before decisions are taken.

Even with excepted posts, say for a company accountant, where spent convictions may be disclosed, employers should not assume they are right to reject an applicant without further consideration.

3) Know staff rights as well as your own​

In terms of existing employees, the situation is more problematic. Butler suggests that if the employee failed to declare relevant information on recruitment, “there may be grounds for disciplinary action.”

This might also apply if the employee has gained a criminal record since starting work, but has failed to comply with a continuing contractual obligation to disclose any new convictions.

The ACAS code of practice on discipline and grievances states that employees should not be dismissed or otherwise disciplined solely because they have been charged with or convicted of a criminal offence. Employers should instead consider the effect on the employee’s ability to do their job and their relationships with clients and colleagues.

Butler also says that other relevant factors include the nature and seniority of the role, the employee’s length of service and whether any vulnerable groups are impacted.

Even where criminal conduct has no bearing on employment, the employee might be unavailable for work because they are on remand or in custody. In those circumstances, employers should consider whether they can hold the role open in light of organisational needs. Alternative employment should be considered before dismissal.

Lastly, to avoid unfairly dismissing employees, employers must ensure they have a fair reason for dismissal and that dismissal is reasonable in all the circumstances. If dismissing for misconduct, employers must show that they have a genuine belief in the misconduct, based on reasonable grounds supported by a reasonable investigation.

A fair process must be followed including allowing the employee to make representations with a right of appeal. Ignoring the advice is only going to keep lawyers like Butler busy.

Do you know if you already employ convicted thieves?

Most businesses understand they can check individual backgrounds on recruitment, but the law allows companies to only go so far says Frances Butler, an associate in Eversheds’ human resources group.

“The key legislation in this area is the Rehabilitation of Offenders Act 1974. This says some convictions become ‘spent’ if the individual does not reoffend during a specified period.”

She notes that, generally, individuals with spent convictions may hold themselves out as having a clean record even where employers ask directly about spent convictions or impose a contractual requirement to disclose them.

The concession to pubs here is for ‘excepted posts’ involving, for example, accountants. Employers can get information through the Disclosure and Barring Service when recruiting for excepted posts.

Of course the simplest way to find out if somebody has a criminal record is to ask them during the recruitment process. However, as Butler points out, the risk is that the employer will not get the information it wants. “Employers cannot insist on disclosure of spent convictions and failure to disclose them is not a lawful ground for dismissal or withholding employment.”

Stay informed and be aware​

• Job applicants (generally) do not have to declare spent convictions
• Employers should make offers conditional on suitable references and appropriate checks
• A criminal record does not necessarily allow firms to withdraw job offers or dismiss employees
• Suspected misconduct must be properly investigated or an unfair dismissal claim may follow
• Employers should always be aware of their obligations under data privacy law when handling personal data