In a message dated 05/02/2001 17:56:06 GMT Standard Time, [log in to unmask]
writes:
<< But fraud is not a criminal offence except when it is wilful. In many
instances the only recourse to an organisation is through an action under
Tort (a civil wrong). The same exemptions under sect 29(3) would not in this
instance apply. >>
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Oh what are we opening here? A can of worms? What employer is going to
attempt to prove the employee was intentionally or recklessly making an
incorrect statement of fact that their employer then acts upon thereby
committing the tort of Deceit? The employer would have to prove damages, yes
only on the balance of probabilities so it should be easier than proving the
mens rea of fraud. Note the tort is deceit, not "fraud", the only other
non-criminal frauds are (I think) misrepresentation and constructive fraud,
see below.
Misrepresentation refers to people being induced into contracts by knowingly
or recklessly untrue statements at the time of entering into the contract
(e.g. when recruiting). Constructive fraud is also not much of an option in
these cases, because even if successful the courts will usually only set
aside the contract or certain terms within it when it is unfair that the
contract is completed. This is almost redundant under the Unfair Contract
Terms Act.
Where the employee is committing a theft (the example was one of missing
stock, I believe) it is likely that the police will be involved and therefore
29(3) will possibly apply. If damages are sought after a successful
prosecution, to recover the value of the stolen goods, there is no guarantee
that the civil courts will award the damages but in some cases they do.
Ian B
MD
Keep IT Legal Ltd
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