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.
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
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 consent of the employee:
- Recording internal meetings with employees.
- Sending internal phishing e-mails to employees.
- Covert cameras being set up in a warehouse.
- The surveillance of remote workers.
The act of
entrapment by the employer would have implications for the employer if ever
they 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 in dismissing the employee, owing to the underhand methods used by the
employer to obtain proof of any wrongdoing without the employee's knowledge.
There are the 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 the wrongdoings of its employees, the
question to be asked is why?
For an
employer to gain the most from their employees, but more importantly for
employees to gain the most out of 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, there has to be something fundamentally
wrong in the relationship dynamics between the parties.
Employment
contracts are treated as containing 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 confidence
and trust term within a contract of employment affects 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
employer and 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 contract of employment.
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 any offer and acceptance of employment, in which case
the question could be asked of the employer, "if you want to entrap your
employees or keep close surveillance of them, why not just be honest and inform
them of the fact?”
It is
imperative for an employer that if they want to use methods of entrapment, they
are spelt out explicitly within the contracts of employment that they have
issued to their employees before using any form of entrapment or means of
employee surveillance.
Employers should also ensure that any entrapment is fully spelt out within a policy 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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