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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47887
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi, I hope you can help me. I am currently on formal suspension

Customer Question

Hi, I hope you can help me. I am currently on formal suspension with full pay and benefits pending an investigation and a disciplinary meeting on Wednesday. I am employed as a contracts associate for a contract research organisation, drafting, reviewing and negotiating ~40 contracts. On 28 May, I had unwittingly and inadvertently submitted an incorrect document containing another clients contract costs for a clinical study to another client. The receiving client had informed me of the error and informed that they had deleted the document to minimise an confidentiality issues. Upon notification of this I immediately flagged this error to limit any potential injury for the accidental disclosure to the appropriate personnel within the company. The company had installed a Sperry software less than a year ago which is a pop up window to ensure client confidentiality, this software application was somehow disabled from my PC and I became aware of the missing pop up facility recently when another colleague noticed it was missing. I have been employed with company for 7 years and have an exemplary employee record. This type of incident is a first offence and I am held in high regard with my peers and clients alike. The company considers a breach of confidentiality whether intentional or not as serious gross misconduct and liable to instant dismissal. I value my job and possess a high business integrity and work ethic. I am very sorry to find myself in this situation. Is there any advice I should seek prior to the disciplinary hearing on Wednesday to assist my case? I would be grateful for any advice you can provide. Lena.
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

Customer:

Hi Ben, as stated in my brief overview I have been with the company 7 years in July.

Ben Jones : Thank you, XXXXX XXXXX specific queries do you have about this, the current question you have is rather broad?
Customer:

I guess my concern is whether the company is within its rights to dismiss me for accidental disclosure of confidential information that was without malicious intent. As an employee is there any way I can protect my position within the company and in the event I am dismissed as a result do I have any rights in terms of unfair dismissal. Any advice, guidance regarding my concerns will be greatly appreciated. I hope this clarifies.

Expert:  Ben Jones replied 4 years ago.
Misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
Carries out a reasonable investigation;
Follows a fair disciplinary procedure;
Has reasonable grounds for believing the employee was guilty; and
Show that dismissal was a reasonable decision that a reasonable employer would have taken in the circumstances.

I will deal with these requirements in more detail:

1. Investigation - what is a reasonable investigation depends on the case and what resources are available to the employer. However, an employer is only expected to go as far as is reasonably practicable in the circumstances and they would not be expected to conduct a forensically detailed investigation.

2. Disciplinary hearing - if the investigation produces evidence that misconduct may have occurred then the employee should be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the statutory right to be accompanied at the hearing but only by a trade union representative or a colleague. At the disciplinary hearing the employee must be given the opportunity to defend the allegations.

3. Decision - if, as a result of the investigation and the disciplinary hearing, the employer holds a genuine belief that the employee was guilty, they can go ahead and dismiss. When deciding on whether to dismiss, the employer should consider the employee's length of service and disciplinary record. Therefore, longer service and a clean disciplinary record should result in the employer giving more thought into deciding what action to take.

4. Penalty - unless the offence in question amounts to gross misconduct (i.e. something so serious to justify instant dismissal), the ACAS Code of Practice recommends that the employee should be issued with a warning first. If any further misconduct occurs in the future, only then should dismissal be considered. I understand that this was not a deliberate error on your part but even acts of serious negligence can qualify and be liable for dismissal. In any event, showing remorse or identifying mitigating factors will help you to an extent

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. A dismissal can be fair if the employer can meet the above requirements.

If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer.
Customer: replied 4 years ago.

Thanks Ben, your message has provided some insight and I am remorseful, I do have a good employee record. I hope my employer takes all of the above into consideration and that the appropriate disciplinary measure is taken without the need to dismiss me on this first occasion. The nature of the document did not contain any know how or trade secret information that would be detrimental to any of the parties. I do not foresee any damage as a result of my unintentional act. If it is decided to dismiss me do I have grounds for disproportionality? The punishment does not fit the crime?

Expert:  Ben Jones replied 4 years ago.
You may indeed wish to consider challenging this on the grounds that the punishment was not a reasonable response to the allegations. It will depend on the seriousness of the offence, whether you breached any specific rules, if they have a specific policy that says such offences can lead to dismissal, the repercussions of your actions, etc
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 4 years ago.

Thank you, I guess I need to attend the disciplinary meeting and see what eventuates...


 

Expert:  Ben Jones replied 4 years ago.
At this stage it is the best option, you will get a much better idea of your rights and what you can do to challenge this once you know how this issue proceeds