A confession of guilt can add a lot of value in making it plausible that an employee is underperforming and can be dismissed. This ruling by the Amsterdam District Court, however, shows that you must be careful when obtaining a confession of guilt. If you follow the wrong steps, it can lose its evidentiary value. A colleague of a sales employee at Hema reported to her employer that her colleague was allegedly guilty of shoplifting. According to her colleague, she had given bags full of goods to various customers. As a result, Hema started an investigation into the employee without the employee’s knowledge. The camera footage confirmed that the employee gave away various goods to customers for free. Hema decided to confront the employee with the evidence in a meeting attended not only by the store manager but also by someone from HR and a corporate investigator. The employee stated that she had given away the goods because she was being threatened by these customers. During that meeting, Hema then presented the employee with a confession of guilt and had her sign it, which also stated the amount of damages, namely €115,000 (!). She was subsequently summarily dismissed. A few days later, the employee retracted her confession and invoked abuse of circumstances. She stated that she had had to sign the confession under excessive pressure and that the damages amount was far too high. She refused to pay the amount. Hema therefore took the employee to court and claimed €115,000. The court ruled in the employee’s favour with regard to the confession of guilt as well as the amount and the determination of the damages. The court found a number of things to be held against Hema:

• Due to the number of people present on Hema’s behalf, a position of dominance and pressure had arisen towards the employee.
• The confession of guilt contains an unfounded estimate of the damages amount.

Hema had not substantiated the actual damage during the proceedings, nor had it produced other concrete evidence of amounts or quantities of the embezzled goods. Finally, the court also held it against Hema that it had not pointed out to the employee the legal consequences and/or that she was not given the opportunity to discuss this with a third party. As a result of the foregoing, the court awarded only a fraction of the claim: €4,080.56.

Practical advice

A confession of guilt is an excellent way to build up your dismissal file and is therefore recommended. Do be careful with deploying an investigation of which the employee has no knowledge, and make sure a concrete reason can be demonstrated in advance for having deployed that measure. Moreover, you would do well to inform the employee about the legal consequences of signing the confession of guilt, and also give that person the opportunity to consult with a third party. Avoid a position of dominance during the meeting when you confront the employee. Do not question one employee with three people. By doing the foregoing, you increase the chance that the damages claim will not be denied and that an appeal to abuse of circumstances will have a chance of succeeding. It is furthermore of great importance that, in the case of a damages claim, alongside a desired dismissal, the amount of that damage can also be proven, as a safeguard, in a way other than through a confession of guilt. Otherwise, damages cannot be (fully) awarded. That should not be guesswork based on an estimate by the employee during questioning, in which that employee is placed under considerable pressure. Only state the damages amount if the damages amount is certain and if there is sufficient external evidence for its amount. Any more questions or comments? Then get in touch with us!

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