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UK-Justice
UK-Justice, Barrister
Category: Law
Satisfied Customers: 16193
Experience:  Called to the Bar in 2007
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Can admissions of wrong doing contained in a private facebook

Customer Question

Can admissions of wrong doing contained in a private facebook conversation from 18 months ago, presented in retaliation against unrelated current disciplinary be grounds for gross-misconduct?
Submitted: 3 years ago.
Category: Law
Expert:  UK-Justice replied 3 years ago.
Thanks for your question. Please remember to rate my answer SMILEY FACE OR ABOVE so that I am credited for my time.

How did they get hold of this info?
Customer: replied 3 years ago.


It was supplied by the gentleman i instigated disciplinary procedures against for aggressive behaviour. He is the person i am having the on-line conversation with,

Expert:  UK-Justice replied 3 years ago.
Ok. And was this done at work or your home?
Customer: replied 3 years ago.

The conversation was conducted at home.

Expert:  UK-Justice replied 3 years ago.
And does the company have an IT policy on Facebook or if conversations had keep confidential?
Customer: replied 3 years ago.

It does. Covers work and private time. It refers to 'posts' rather than 'private messaging' but not sure whether this is a valid distinction.


 


> Take responsibility for what you post: A breach of confidentiality in relation to the Comany etc..


 


> Never leave inappropriate/commercially damaging or slandeous comments on Facebook or any other social networking site etc...


 


> Never reposind to posts about company etc..


 


> Do not share non public information, including but not limited to; etc..


 


All these expectations apply when you are utilising social networking sites outside of working hours.


 


 

Expert:  UK-Justice replied 3 years ago.
And does the company have in the policy that says you do not have a right to privacy?

How did they get hold of the posts?
Customer: replied 3 years ago.

Under heading "Employee Use Of Social Networks"


Company respects an employee's right to a private personal life and how online social networking sites, such as Facebook, Twitter and YouTube can form part of this. It is important however that all employees are aware of the implications of engaging in social networking arenas that reference the company, its employess, suppliers and customer. We have specific expectations of behaviour when social media is used on a personal level by employees. These are: please see previous reply.


Posts were given to them in form of print out of conversation by other employee.

Expert:  UK-Justice replied 3 years ago.
On these posts are not relevant to the misconduct alledged against you?
Customer: replied 3 years ago.


The posts refer to an employee i was having issues with, they admit to faults in my own behaviour as to why I was in a difficult position to address her wrong doings, I had only been manager for three months at the time. The print out is the only and sole reason for my suspension, there is no other evidence and no other issues regarding my conduct on my on my record.

Expert:  UK-Justice replied 3 years ago.
What is the allegation?
Customer: replied 3 years ago.

Here is the list!



  • Alleged inappropriate behaviour specifically comments made on facebook in relation to;

  • -Being under the influence of alcohol whilst on shift. (for your info, guilty)


-Making inappropriate comments about colleagues (guilty)


- False customer complaint against colleagues (although conversation says this, i didn't actually go through with that)


-Removal/borrowing of companies monies potential theft (think they have mis-read this as i am refering to employee, not me)


- Till operations, employee accounts and check in/out procedures (guilty of letting staff take and return product without actually using system provided)

Expert:  UK-Justice replied 3 years ago.
And did you comment about this employee?
Customer: replied 3 years ago.

Dont mention her by name but obvious guy i'm talking to knows who i'm talking about. Say that colleagues tell me she is stealing from till, say she is a nightmare, call her poison and generally do a complete character assasination. I was letting of steam to be honest, did not consider anyone else reading it and was comfortable in fact guy i was talking to knew me well enough not to take me seriously.

Expert:  UK-Justice replied 3 years ago.
Was it pm or post?
Customer: replied 3 years ago.


private message

Expert:  UK-Justice replied 3 years ago.
So it was not public in any way?
Customer: replied 3 years ago.


no, visable only to myself and guy i was having conversation with.

Expert:  UK-Justice replied 3 years ago.
And in relation to this other guy, is he external or another employee?
Customer: replied 3 years ago.

he's another employee.

Expert:  UK-Justice replied 3 years ago.
An employer can dismiss an employee based on their conduct. The conduct can be a single incident or over a period of time. Normally an employer would have a HR policy dictating the process and you should check to see if there is such a policy in place.

In order to show that dismissal on grounds of conduct was fair, the employer would need to show:

1) Employer had honest belief - The employer needs an honest and genuine belief that the misconduct occurred. It does not need to be beyond doubt but the employer needs to have a genuine belief.

2) Investigation – an employer needs to carry out an investigation. It would be witness evidence of other people. What is a reasonable investigation depend on the circumstances. Clearly someone such as a Tesco would need to carry out a more thorough investigation that, say a one man band.

3) Disciplinary hearing - if the investigation shows evidence that misconduct may have occurred then the employee will be ask to attend a hearing. They can take a trade union rep or a fellow employee, but a Solicitor. The panel hearing the allegation will hear from the management and the employee and reach a view whether the misconduct occurred. If the allegation is not upheld, that is the end of the matter.

A) The Decision – if the Employer is satisfied the misconduct has occurred then the allegation will be proven. The employer can then go on to consider mitigation such as employees’ previous record, length of service etc.

B) Sanction - unless the offence in question amounts to gross misconduct (i.e. that destroys all trust and confidence between the employer and employee), the ACAS Code of Practice recommends that the employee should be issued with a warning first. This can be verbal, written or final written.

The ACAS code of conduct can be found at: http://www.acas.org.uk/index.aspx?articleid=2174

In conclusion, an employer is not expected to prove that the alleged misconduct had definitely occurred. To be able to justify dismissal as being fair, it has to show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. It must be proven on the balance of probabilities rather than beyond reasonable doubt.

In order to claim unfair dismissal the employee must have been working for at least 12 months continuous service.

If an employee is dismissed they have 3 months (less one day) to bring a claim at an Employment Tribunal. Therefore if dismissed on 1st Jan they would need to bring a claim by 31st March.

However - given that the Policy states posts, it does not suggest PM's.

Further the Policy does not say anything about PM's that are not public. This could be just the same as having a conversation outside of work with another employee.

You are not required to disclose the details of it, unless there is a company Policy saying that you must.

Further they can't make you disclose it because they do actually say they respect the right to a private life - if thats the case, how they can make you disclose it!

I realise that this is stressful but hope this helps.



Please remember to click *** OK SERVICE *** or above so that I am credited for my time. The question does not close and you can ask follow ups.

Important: If you feel the need to rate as one of the lower two scores, it counts as negative feedback so please reply to me via the REPLY with any further questions you may have. I will be happy to assist you further.
Customer: replied 3 years ago.


They have conversation, I have said it is not from my facebook and i know nothing of it. They have asked me to prove it is not from my facebook. I cant do this, I can't prove it is either as I deleted it. In your opinion do they have grounds to dismiss me on the print out of this conversation alone?

Expert:  UK-Justice replied 3 years ago.
Only if they have a reasonable and genuine belief.

They need evidence.

Its not for you to prove your innocence, its for them to prove your guilt.


Please remember to click *** OK SERVICE *** or above so that I am credited for my time. The question does not close and you can ask follow ups.

Important: If you feel the need to rate as one of the lower two scores, it counts as negative feedback so please reply to me via the REPLY with any further questions you may have. I will be happy to assist you further.
UK-Justice, Barrister
Category: Law
Satisfied Customers: 16193
Experience: Called to the Bar in 2007
UK-Justice and other Law Specialists are ready to help you
Customer: replied 3 years ago.


Really appreciate the time you have given me. Big thank you,

Expert:  UK-Justice replied 3 years ago.
Welcome. Sorry it took a while to get there!
Expert:  UK-Justice replied 3 years ago.
I'm just following up with you to see how everything is going. Did my answer help?

UK-Justice
Customer: replied 3 years ago.

Yes thank you. I decided to communicated the points you made and give 1 months notice to terminate my employment due to loss of faith in the company. I had put my head on the block recently by personally calling and then re-affirming in writing my belief that the company threatens job security routinely as a way of increasing productivity (an e-mail had been leaked to the press and we subsequently had the pleasure of listening to a voice-mail portraying a supportive environment that i don't believe any employee recognized, it made my blood boil!) and although my store had been in the top three for the previous 4 month I was consistently being chased for tasks either already done or that I had been given lee-way previously. To be honest I was working 14 hours days for an unappreciative company and having a sense that I had taken professional advice gave me the confidence to cut my loses and use my skills for mine and my families benefit. I am extremely grateful.

Expert:  UK-Justice replied 3 years ago.
Ok - thanks for the update.


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