Dishonest employees – ’tis the season for private prosecutions

The crimes can be as varied as the offenders themselves. From theft of company property or colleagues’ belongings to false expense claims or fraud against customers and valued company clients. The common factor of all of these acts is that they are crimes of dishonesty and involve a gross breach of trust.

If criminal conduct is discovered in the workplace typically a number of steps are taken: investigation, disciplinary action and possibly, termination. In the more serious cases, where the amount of money involved is significant or the period over which the fraud was committed was lengthy, the police may need to be involved. However, there is also another remedy that employers are increasingly turning to – commencing a private prosecution. 

A private prosecution can be started by any individual, organisation or company (under section 6 of the Prosecution of Offences Act 1985). Private prosecutions provide victims of crime with an alternative way of accessing justice when the traditional state prosecution agencies are unwilling or unable to assist.

A number of organisations have already embraced the use of private prosecutions to demonstrate their zero tolerance attitudes to dishonesty in the workplace. Royal Mail is a very active private prosecutor for example and prosecutes employees for high value thefts. Credit companies also feature in this area, for example Provident Personal Credit successfully prosecuted a loan manager employee for offences against the Fraud and Theft Acts. 

Where deterrence to others and bringing the offender to justice are the primary motives for commencing legal proceedings then bringing a private prosecution can be a very effective way to achieve those ends. 

Furthermore, in circumstances where due to the passage of time or because of the offender has limited means it is impractical to commence civil proceedings against them, then bringing a private prosecution can be a more effective way to recover a loss. This is because at the conclusion of a successful prosecution, the private prosecutor may seek to start confiscation and compensation proceedings to strip the offender of the proceeds of their crime.

Another attractive feature of the private prosecution route is that the court can also make an order awarding the private prosecutor (ie the employer) costs irrespective of the result and generally they are not required to pay the defendant’s costs, provided the prosecutor can demonstrate that they have acted in good faith and the proceedings were not improper.

The impact of employee crime in the workplace cannot be understated. It is deeply damaging both to those staff and managers who placed their trust in the offender colleague and also to the public and valued clients who placed their trust in the business. It is essential that when such activity is uncovered management takes swift and effective action: to punish the offender, to deter others from such conduct and ideally, to achieve compensation. A private prosecution is one legal remedy to help these goals be achieved.

Melinka Berridge is a partner at law firm Kingsley Napley.

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