Most people accused of theft at work do not have previous convictions, and have more than just their liberty to lose if convicted. They often stand to lose their reputation and good name. With this in mind, having a specialist theft and employee fraud solicitor dealing with the case is essential from the outset.
Charges of Employee Dishonesty
In employee dishonesty cases, charges of obtaining money or goods illegally as an employee are often brought under the Fraud Act 2006. Part of the reason for the introduction of this law was to close gaps in the law caused by new types of theft involving technology that did not exist when the previous fraud offences were introduced. Theft offences are often prosecuted under the Theft Act 1968.
Theft at work or in the context of employment- what must be proven?
To show theft, and to make out most employee fraud offences, the prosecution must show that the defendant has been dishonest. In cases where the defendant thought that he or she had a right to the property he or she was taking, a prosecution will usually fail.
Company procedures and records in theft from employer cases
To determine whether theft can be shown, the whole systems of the company involved need to be analysed. Any training manuals need to be requested from the employer, and any information relating to that company's procedures and common practices must be given to the defence by the prosecution. Where this does not happen, an application should be made to the court for the judge to order the prosecution and police to comply.
Records of all transactions have to be requested, both ones which the prosecution say are illegal, and also ones which are apparently innocent. Where necessary, the trail of all money and/or goods has to be tracked. This may need the assistance of a forensic accountant. This is an accountant who has expertise in dealing specifically in criminal cases, and ideally also in employee dishonesty cases.
The reason why an employee fraud solicitor must carry out this thorough type of investigation, is because the context of what is put forward as the prosecution evidence is so important. Money going missing on a particular occasion may look like very strong evidence on its own. However, if the context and surrounding evidence is looked at, and this shows that money has gone missing on other occasions, including when the person accused was not even working, then this changes the picture dramatically.
Put simply, there have been many occasions where due to errors in company systems, people have been falsely accused of theft, and it was only due to proper and thorough analysis of the evidence which showed that this was actually due to technical errors and that money had never actually been taken in the first place.
This is where the experience of a general criminal practitioner and a specialist employee fraud solicitor can make a huge difference.
Presentation of character of the person accused is always important. A jury must not only know if a person has never been in trouble with the police before. They should also be told about the type of person they are through live and written character referees, whether they are honest and trustworthy, and most importantly whether the allegations against them are contrary to type of person they are known to be.
It is often a person's reputation and good name at stake when facing an allegation of employee theft. It is this good name and reputation that should be used to their advantage and part of their defence case.
Sentencing for employee fraud cases
In employee fraud cases/theft from employer cases, a custodial sentence is always a possibility if the defendant is convicted. The fact that the defendant is in a position of trust means that the offence is especially frowned upon by courts. If the theft at work has caused the company financial difficulties or has had a negative effect on other employees, then this increases the possibility and potential length of a prison sentence. Much can be done to try to prevent this, but the best way of dealing with a theft from employer case/employee fraud cases is, where possible, to fight it.
However, circumstances do arise where people have ended up in difficult situations and committed theft from their workplace due to various outside pressures. In these circumstances, the work of an employee fraud solicitor is not over, and details of the background circumstances need to be looked into in order to achieve the best outcome for the client in terms of sentence. Where there is strong mitigation and a well-presented argument, that can sometimes mean a suspended sentence and a client avoiding going to prison, even where they have acted in breach of trust.
Time spent with the Client
In theft from employer cases and employee fraud cases, the importance of spending time going through all of the prosecution evidence, and also building a defence case cannot be overstated. The client will usually know more about their workplace than their lawyer, which is they need to help provide an insight into how things operated. It is often only by providing a thorough pro-active defence that a prosecution for theft from an employer can be foiled.
If you have been accused of theft from employer or employee dishonesty, we recommend getting in contact with both an Employment Lawyer and a specialist employee fraud solicitor for initial free legal advice.