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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have accidentally lost part of an employee file. I was given

Resolved Question:

I have accidentally lost part of an employee file. I was given it by an employee when we were at a course. I believe I left it at the specific hotel as i did not go anywhere else. I have reported it to the hotel but they have been unable to locate.
What should I do? Can I be dismissed for gross misconduct?
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there?

Customer: 3 months
Ben Jones :

Does the employer know about this?

Customer: No not. Yet
Ben Jones :

what were the contents of the file that were lost?

Customer: I'm not 100% sure but it was performance provemant plan documents & also notes from his meetings regarding this
Ben Jones :

as you were entrusted with the safekeeping of this information, it could be a potential misconduct issue if you had lost it as it will also be a data protection concern. Of course there is no guarantee that the employer will treat this as gross misconduct but there is the potential of that happening - it really depends on the employer, you can never guess how seriously they will treat this so it can be quite subjective. One important thing in your case is that you will not be protected against unfair dismissal - we are really talking worst case scenario here in the event they decide to dismiss you but if that was to happen then you will not be able to challenge it as being unfair because you need to have at least 2 years' service to do so. Thy can therefore legally dismiss you for more or less any reason, including this loss of documents. As mentioned, there is no guarantee they will do this but the potential is there so bear that in mind. In the meantime, try to resolve this as best as you can - you have already tried to locate the file but also you may want to come clean with the employer - if you are honest and admit your mistake, apologising and offering to try and resolve as best as possible, the employer may still accept it was not done maliciously and was human error

Ben Jones :

Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer: Do you feel in your experience that this is gross misconduct?
Ben Jones :

it really depends on the contents and the effects of their loss will have on the employee/business. The main issue is the data protection breach and also it would be relevant if you did not follow certain company rules, like if you were not supposed to take these out, supposed to store them securely, etc. So there are many if's and the biggest uncertainty is how the employer would treat this

Ben Jones :

So whatever I may thin, the employer could think completely different and it is their opinion that matters here

Customer: The file was given to me by a colleague I have checked & we have no guide around transporting or carrying personal information .
Ben Jones :

then it really is a decision for the employer, remembering that they can decide to dismiss even if in normal circumstances it is not a serious offence to justify dismissal - it is your short length of service that will make this lawful, but as mentioned there is no guarantee it will end up in dismissal

Customer: Do you think it would go in my favour that it was accidental? I am always so so careful, & I can't believe this has happened, I really can't afford to lose my job we have just bought a new house, & everyone is so proud of me getting this new job. I feel I might just need to make a reason to leave. I can't let people down.
Ben Jones :

don't think the worst yet. As mentioned if you come clean are honest with the employer, tell them it was an accident, apologise and state you will do all that is necessary to resolve this then they may be lenient, but I must stress again it all depends on the employer - I can't predict their response, ony they know that

Customer: I'm just terrified. The gentleman no longer works for us so we wouldn't need his records at this point but there is a risk that he may try & take us to an employment tribunal. We would then need these notes. Do you think it would be reasonable in some way to ask him for copies as he would have them
Customer: if we needed them.
Ben Jones :

you may indeed do but it depends on whether he then gets suspicious as to why you are asking him for these assuming you should have them. You could say it is to check for any discrepancies and dress up the request to avoid any suspicion

Ben Jones :

has this clarified things for you?

Customer: Yes thank you
Ben Jones :

No problem

Ben Jones :

ok great, all the best and hope it works out one way or another

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