Entrapment is the process or
the action of entrapping or the condition of being entrapped, where
the act of a person is lured into committing a crime or undertaking an action
that is contrary to an activity that is allowed by an organisation to prosecute
or chastise the person for committing the crime or undertaking the wrongful
act.
Defining Entrapment
The action of entrapment is
the conceptualisation and planning of an offence or wrongdoing by a law
enforcement agency or organisation and the procurement of its undertaking by a
person or group of people who would not have otherwise been a party to the crime
or wrongdoing, except for the persuasion, coercion, trickery, or fraud
undertaken by the law enforcement agency or an organisation.
Within business in general
or the actions of whistleblowing, entrapment means the deceptive or
trust-breaking techniques applied to trick someone into committing a legal or
moral transgression.
There is no defence in
English law concerning entrapment. Still, it is considered an abuse of the
process of a law enforcement agency or an organisation to lure a person into
committing illegal acts or wrongdoings and then seek to prosecute or punish them
for doing so.
The House of Lords has
stated that “although entrapment is not a substantive defence in English law,
where the accused can demonstrate entrapment, the court can stay the
proceedings as an abuse of its process or exclude such evidence procured
through entrapment”.
Where the actions of a law
enforcement agency threaten the rule of law, or the actions of an organisation
threaten the moral dignity of a person or group of people entrapped into
undertaking wrongdoing, it would be unfair to prosecute the defendant or to
chastise a person or group of people for committing the transgression.
Entrapment in The Workplace
Entrapment within the
workplace can occur in several ways and is directly related to enticing
employees into committing wrongdoing or capturing evidence of wrongdoing
without the perpetrator’s knowledge; examples include the following, without the knowledge of the employee:
- Recording internal meetings with
employees.
- Sending internal phishing emails to
employees.
- Covert cameras being set up in a
warehouse.
- The surveillance of remote workers.
The employer's act of
entrapment would have implications if the employer ever wished to act against
the employee for the wrongdoing. For example, dismissing an employee using
evidence obtained through surveillance might weaken the employer’s case, owing
to the underhanded methods used by the employer to obtain proof of any
wrongdoing without the employee's knowledge.
The Need for Trust
There are more interesting
aspects of entrapment, such as the employee’s trust in the employer and the
long-term impact on the employer’s reputation. If an employer has resorted to
using entrapment methods to capture its employees' wrongdoings, the question to
be asked is why.
For an employer to gain the
most from their employees, and more importantly, for employees to gain the most
from their employers, there must be implicit shared confidence and trust
between both parties. For one party to be suspicious enough of the other to use
entrapment, something fundamentally wrong in the relationship dynamics between
the parties has to exist.
Employee Trust and
Confidence
Employment contracts contain
a term of confidence and trust that requires employers and employees not to
conduct themselves, without reasonable and proper cause, in a way that is
calculated or likely to destroy or damage the trust or relationship of
confidence between employer and employee.
The terms of confidence and
trust within a contract of employment affect every aspect of the relationship
between the employer and the employee. It creates a comprehensive description
of unreasonable conduct in employment, which is a two-way duty binding on both the
employer and the employee.
While the term confidence
and trust is referred to as an implied term within a contract of employment, it
is better thought of as an imposed term, as an express term cannot exclude it.
Confidence and trust have two different meanings:
- Confidence: Not treating each other
in a wholly unreasonable manner.
- Trust: Treating each other with
respect and civility.
Suppose the employer or the
employee breaches the implied term of confidence and trust. In that case, it
could be regarded as a repudiation of the employment contract. Such a breach by
the employer might entitle the employee to resign and claim constructive
dismissal. If one employee is subjected to an entrapment action more than
any other, that employee may have a claim for victimisation. Methods of
selecting when entrapment methods are used must:
- Be applied in strict rotation to
all employees or all employees simultaneously.
- Have the selection methods
described within an entrapment policy.
- Be auditable to protect the
employer against employee victimisation claim(s).
What is more important
between an employer and an employee is that each party must want to trust the
other before making any offer and accepting employment. In this case, the
employer could be asked, "If you want to entrap your employees or keep
close surveillance of them, why not just be honest and inform them of the
fact?”
Alternatives to Entrapment
It is imperative for employers
to explicitly state in the contracts of employment that they have issued to
their employees that they want to use methods of entrapment or means of
employee surveillance before doing so.
Employers should also ensure
that any entrapment is fully spelt out within a policy that is available for
all to read within the employing organisation. Entrapment methods must be
applied fairly, openly, and transparently to all employees.
Employers should also look
at alternative forms of guiding their employees rather than using entrapment
methods to monitor their actions. Training is a positive reinforcement of what
an employer requires of its employees, rather than a negative form, such as
with entrapment.
Training can be carried out
individually or as a group and sends out a positive message to employees that
my employer cares about me, rather than the negative connotations entrapment
usually engenders.
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