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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47413
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Recently a colleague of mine quit to start his own business.

Resolved Question:

Recently a colleague of mine quit to start his own business. It turns out that he has stolen the client database which I was not involved in nor knew about until yesterday. My director told me that I was not allowed to speak to my former colleague outside of work. this wasn't just because of what he did. They ban all employees from talking to former employees. My former colleague message me last night, to which I briefly replied stating that I was in trouble yesterday for talking to him and implied to him that I didn't want people to know he contracted me. I then blocked him on facebook so he could not message me again. The message has been forwarded to my employer by my former colleague and I now have been suspend on full pay, with a disciplinary on Monday for gross misconduct and breach of trust. Is this lawful for my employer to do? Does using a confidential message sent via facebook to my former colleague against me breach data protection / employment law? Also, is it legal to voice record the disciplinary meeting?

Please note one colleague has already been fired for making contact with him.

Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 2 years ago.

I started working for them in November 2011.

I've been a Sales Manager for over two years, and have recently been re-promoted.

I also have an exemplary disciplinary record, never being sick or receiving a warning, besides one I was given yesterday (and clarified today in writing as a written verbal warning) for previously seeing the colleague in question at a poker night when he was off work sick.

Expert:  Ben Jones replied 2 years ago.
It is not unlawful for the employer to use a private message such as the one in your case. You may have intended for it to be private but that does not stop the other person from forwarding it on. If the employer then gets their hands on it they are free to use it as evidence against you. The other person would not be subject to the stricter data protection rules that for example organisations would have if they were processing personal data. This isn't private matter and largely unregulated. There would have been a potential issue had the employer accessed the message themselves when they had no authority to do so but in this case it was sent to them so they have done nothing wrong and now it is in their possession they are free to use it.
In terms of recording the meeting, it is not illegal to secretly record meetings between individuals. Whether any legal issues arise as a result depends on the contents of the conversation being recorded and how the recording is to be used.
The first issue is in relation to third party confidentiality. The Data Protection Act 1998 (DPA) applies to situations involving the processing of personal data. If the recording deliberately or accidentally records personal data about a third party, then its use could be restricted by the DPA. As such, try not to keep any recordings that contain such information.
The second issue is to do with the intended use of the recording. If this is to be used as evidence in court, whilst the court retains the final authority on whether it should be allowed as evidence, certain principles exist and can be considered in advance.
The leading case is that of Dogherty v Chairman and Governors of Amwell School. Mrs Dogherty, a teacher in the school, had made secret recordings of an "open" disciplinary meeting that she was subjected to and the subsequent "private" appeal meeting, held in her absence. She then tried to use these recordings as evidence in her claim for unfair dismissal against the school.
The Employment Appeal Tribunal decided the following:
• The contents of the "open" disciplinary hearing were capable of being secretly recorded as it was directly relevant to the teacher's claim
• The recording of the "private" appeal hearing was not admissible as evidence. As this was conducted in private, it was not directly relevant to the claim.
A more recent case is that of Punjab National Bank v Gosain, where an employee covertly recorded private discussions made by the employer as part of a grievance and disciplinary hearing. The employer may inappropriate remarks about the employee and the Employment Appeals Tribunal decided that this is admissible evidence as the comments did not form part of the deliberation process of the grievance and disciplinary.
So whether a court would allow the use of a secret recording very much depends on the contents of the recording and the nature of the meeting that was being recorded. As long as there is no illegal recording of personal data about others and the conversation that was recorded was not part of private deliberations about the issues at hand, there is a good argument that their use as evidence should be allowed.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

Hi,

Please could you answer the first point, in that;

Is it lawful for my employer to discipline me on the basis that I have had communication with a former employee / friend, after they had banned me from speaking to him, even though this happened outside of my working hours and I didn't give him any detailed information that would effect the company?

Expert:  Ben Jones replied 2 years ago.
Yes it is possible to be disciplined even if it was not in work time but whether it justifies dismissal is another matter. If this was just a private conversation outside of working time and had nothing to do with the issues in regards ***** ***** data or anything else work-related then it may be harsh to dismiss considering you do have the right to private life and that you may have a personal relationship with that person which the employer could not necessarily prevent. But what action they take depends on what they believe happened and that is where the investigation and evidence would come into play, together with the disciplinary hearing
Customer: replied 2 years ago.

Ok, thank you.

Finally, if I was to be dismissed on these grounds, could I make a claim for unfair dismissal? If so on what basis.

My hours of work are Monday to Friday 8;45 to 17:15, however daily we are made to work until 6PM. There is also the constant threat of being made to come in to training on a Saturday, even though this is outside of our working hours, if performance is low.

We also incur "fines" which are forced payment to the companies charity foundation if our work falls below standard, even if that is marginally, i.e. a small mistake on the computer system when entering an order will result in a £50 fine.

Could these actions of my employer be used against them at a tribunal if I was to be dismissed for this incident.

Expert:  Ben Jones replied 2 years ago.
If you were to be dismissed then it is possible to challenge this as unfair dismissal on the basis that it was not a reasonable response taking into consideration the allegations. Yes, you did contact the employee against the employer's instructions but it is also important to consider what the nature of the conversation was, that it was not in work time and that it did not concern work matters or the issues surrounding his departure. The other things you mentioned would not really be relevant to the dismissal as they have nothing to do with what you are being disciplined for. Hope this clarifies things for you?
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