Ask the expert: Company property

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Ask the expertWhat can an employer do when an ex-employee refuses to return company property, including a lap top and mobile phone? Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise.

The question:

An ex-employee still has a company laptop, mobile phone and sat nav. We have written to him requesting their return but have had no response from him at all. He does not answer his phone. How do we go about getting this company property back?

Legal advice:

Esther Smith, partner, Thomas Eggar

One very useful way of recovering any company property where an employee leaves is to process any outstanding payments owed to them by the company by way of cheque, rather than bank transfer. You then tell them that they can come and collect the cheque and deliver the company property back at the same time.

However, if you do not owe the employee money, or indeed have anything they want from you in return for bringing the property back, your options are limited, but the last resort is always to report the property to the police as stolen.

Generally speaking you should advise the employee in advance that if the property is not returned within a certain time frame then you would have no choice but to report it. You may struggle to get the police to take interest, as the common response is that this is a civil rather than criminal matter, although this of course depends on the particular force you are dealing with. However, the threat of reporting it to the police is usually enough to prompt the employee into action.

Also, if the employee does persistently refuse to return property despite repeated requests, this is of course something that you are at liberty to mention to any prospective employer who requests a reference from you. It is a matter of fact and therefore to record the fact that the employee refuses to return property rightfully belonging to you, and that you have or are going to report this theft to the police, is a perfectly legitimate thing to do, so long as it is factually correct and not over exaggerated.

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner, Mills & Reeve

These are always difficult circumstances and not easy to resolve. There are effectively three things you can do.

First, take legal action for what is called 'delivery up'. In other words, ask a court to order the individual to surrender the goods to you. Second, you could tell the police that the goods have been stolen, which on the face of it they have. Third, look to see if there's anything in the contract about access to, use of and return of the property.

If there is a clause requiring return of the property when asked for and/or on termination (or even if you can argue that it is implied) then you can sue for breach of contract. Personally I would start with the police.

Martin Brewer can be contacted at [email protected] . For further information, please visit Mills & Reeve.

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2nd Sep 2008 14:25

It may be way too late in this case but a quick tip for you.

I know there's a principle at stake, but think about what it costs to undertake this chase with HR managers time at £20/hour, add legal costs. Bear in mind, cost of a mobile ranges from free~£200 ? Satnav £100 - £200, Laptops ~ £900, All dependant on purchasing power of the company and deals extracted from providers.

Some basic record keeping prior to equipment issue could have helped you.

If you hit *#06# on mobile you will get a 15 digit serial number, report this into the service provider they can turn off the phone irrespective of whether the user changes the sim card! Check your own if you don't believe me.

PC's have a similar code issued by the manufacturers. Whilst it may not make it impossible to use but it will make downloads far harder work.

If you have a transfer of a PC between employees have you had it cleaned prior to transfer? And what's that cost? It could be worth getting a new employee a new PC anyway.

For the satnav, may be someone else can enlighten me, but I would imagine usually they have a download interface that can be turned off.

Of course that's assuming we're all good corporate citizens and have our basic records up to date.

It may be ethical to chase but at what value?

(And I guess some legal eagle will say its an infringement of someones rights to do this!)

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