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Jonathan Goldberg

The difference between 'trapping' and 'entrapment'

Fri, 26 Aug 2011 09:37

Jonathan Goldberg

Employers utilise a variety of methods to prove an employee’s guilt, some of which are neither recommended nor legal. Methods that are legitimate and potentially effective include the following: carrying out a thorough investigation so as to gather relevant facts; using documents as proof; corroborating documentary proof with audio evidence, video footage; polygraph test results; calling witnesses to give truthful and relevant testimonies and entrapment of suspected employees.

Methods that are illegitimate and dangerous include the following: altering documents, statements and taped evidence; encouraging witnesses to lie; coercing the accused employee into confessing and entrapping the suspected employee illegally.

Confusion arises between the legal method of entrapment of the employee and illegal entrapment. Entrapment occurs where the employer lures the employee into carrying out misconduct that the employee would not have carried out but for the ensnaring methods of the employer.

An employer cannot create a situation whereby an employee is placed under pressure, coerced or encouraged to commit misconduct. The element is of inducement is critical and the employer is to not overstep the boundary by actively encouraging an employee to commit misconduct when the employee would not have ordinarily have done so.

Subtle factors distinguish between legal trapping and illegal entrapment and due to the technical nature of these distinctions, employers are strongly guided to not use traps until they fully understand that the line between offering and indecent to the employee or employer.

Jonathan Goldberg is the CEO of Global Business Solutions. Email him at execoffice@globalbusiness.co.za