Helen Grimberg, partner in the retail team at Berrymans Lace Mawer LLP, says the employment contract could permit wage deductions, but withholding wages should only be done if employers can prove a theft - otherwise employees can successfully sue for their full wages.
There is no limit to the amount deductable from a final wage payment says Grimberg but, if the worker is still employed, deductions are limited to 10% of gross daily pay and cannot continue for more than a year after the theft.
An action for civil recovery of the money is apt for large thefts. “The civil courts apply a lower standard of proof in such cases than criminal courts, so actions are not fraught by the need to prove theft ‘beyond reasonable doubt’,” she explains.
Civil courts can also make orders to freeze bank accounts, ring-fence assets, search premises and trace transactions with potential accomplices. “Many of these can be granted without notice being given to the employee [so] they can be hit with a court order before they can make off with the cash,” she adds.
If an employee has already left the country or spent the cash, employers may have an ownership claim over items purchased with the money, but Grimberg says the law becomes complex in such cases and specialist advice is essential.
“Employees can be hit with a court order before they can make off with the cash”
Helen Grimberg, Berrymans Lace Mawer
Civil action for minor, one-off and small-value thefts is controversial and may be unlawful. “In such cases, an employer should look at reclaiming the stolen money via wage deductions,” says Grimberg.