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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48168
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My wife discovered an affair that I was having with a colleague

Resolved Question:

My wife discovered an affair that I was having with a colleague and sent said colleague
emails from a personal email address pretending to be me.
I was in a meeting with a Manager at the time these emails were sent.
I have been suspended pending an investigation. What are legal implications should I be sacked for gross misconduct? Can I be sacked for gross misconduct.
The emails were not derogatory, racist or sexually explicit in anyway.
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

How long have you worked there for?

Customer:

I have been working there for just over 3 years

Ben Jones :

Briefly, what was the content of the emails?

Customer:

I will post a redacted copy of the email for you:

Customer:

On Monday, 3 November 2014, 12:52, XXXX wrote:




From: XXXX
To: XXXX
Subject: RE: RE:
Date: Mon, 3 Nov 2014 12:08:10 +0000

What part of don’t email from your personal email wasn’t clear?

1. Your wife is going through your bank statements and bags, how long do you think it’ll take before she checks your emails if she hasn’t already.

2. Have you changed your password ***** something she cant guess?

3. If you haven’t changed your password ***** put money on the fact that she could guess it easily.

4. My email address is in my married name – try explaining that one.

Delete everything please.

From: XXXX
Sent: 03 November 2014 12:05
To: XXXX
Subject: RE:

what is yours then?




From: XXXX
To: XXXX
Subject: RE:
Date: Mon, 3 Nov 2014 11:58:43 +0000

Please don’t email from your personal email.

From: XXXX
Sent: 03 November 2014 11:53
To: XXXX
Subject:

The contents of this email are confidential to the intended recipient and may not be disclosed. Although it is believed that this email and any attachments are virus free, it is the responsibility of the recipient to confirm this.

On Monday, 3 November 2014, 12:52, XXXX wrote:




From: XXXX
To: XXXX
Subject: RE: RE:
Date: Mon, 3 Nov 2014 12:08:10 +0000

What part of don’t email from your personal email wasn’t clear?

1. Your wife is going through your bank statements and bags, how long do you think it’ll take before she checks your emails if she hasn’t already.

2. Have you changed your password ***** something she cant guess?

3. If you haven’t changed your password ***** put money on the fact that she could guess it easily.

4. My email address is in my married name – try explaining that one.

Delete everything please.

From: XXXX
Sent: 03 November 2014 12:05
To: XXXX
Subject: RE:

what is yours then?




From: XXXX
To: XXXX
Subject: RE:
Date: Mon, 3 Nov 2014 11:58:43 +0000

Please don’t email from your personal email.

From: XXXX
Sent: 03 November 2014 11:53
To: XXXX
Subject:

The contents of this email are confidential to the intended recipient and may not be disclosed. Although it is believed that this email and any attachments are virus free, it is the responsibility of the recipient to confirm this.


Customer:

I final email was sent that i don;t have a copy of saying "I know - but I don;t care anymore I just want to be with you.

Customer:

She also sent an email from our joint email account asking if the relationship was over as she had the needs of our children to think about.

Ben Jones :

have you been told this is potential gross misconduct and if so on what grounds do they believe that is the case?

Customer:

I haven't been told that if this is potential gross misconduct yet I have been informed that a serious review of my conduct will be taking place. I presume that gross misconduct is the worse case scenario.

Customer:

I did go to my Manager to let him know that "someone" had sent emails to a colleague in my name.

Customer:

He said that I have no choice than to go home.

Ben Jones :

ok thanks let me get my response ready please

Customer:

If they monitor my computer they should be able to see if I have accessed the email from work.

Customer:

Rather that I hadn't.

Ben Jones :

The first thing to note is that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.

Any period of suspension should be as short as possible and reviewed on a regular basis. A knee-jerk decision to suspend, without considering whether this is actually necessary, or if it could be avoided, could result in the employer acting in breach of the implied term of trust and confidence. This could prompt the employee to complain to the employer, such as by raising a grievance.

During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.

On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.

As far as potential dismissal, 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:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure;

  • Has reasonable grounds for believing the employee was guilty; and

  • Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.


In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:

1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.

3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.

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:

So if there is evidence to suggest that it could not have been I should be safe?

Ben Jones :

yes there is a strong likelihood you should be but it depends on what the employer's investigation uncovers

Customer:

Do they need to keep in contact through out the process?

Ben Jones :

they should update you periodically with the progress of the proceedings

Customer:

If I have evidence that proves I did not send the emails and yet I am still found guilty of gross misconduct, would I have grounds to appeal the decision?

Ben Jones :

yes certainly

Customer:

My wife had sent the emails to her Mother would that be enough evidence along with being in a meeting at the time these were sent.

Ben Jones :

it is all you have so all you can do is provide them as evidence

Customer:

okay thank you, ***** ***** get a copy of this on email?

Ben Jones :

You have a few options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.
c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

I am in the process of tracing the location of the IP address which should help aswell.

Ben Jones :

anything you can find will assist you

Customer:

I can't seem to be able to leave a rating.

Customer:

I have just come off the phone with my manager. He mentioned that a few people know about the relationship and something has been posted on facebook about. He said that it doesn't look good for me.

Customer:

Will there be any repurcussions against my wife aswell. I am concerned as we have children together.

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