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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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in 2013 i forwarded a copy of my spreadsheet template as a

Resolved Question:

in 2013 i forwarded a copy of my spreadsheet template as a guide to a new employee, telling her to adapt if she wanted to use it.
Unbeknownst to me in Feb 2013 she added an attachment to it but was still saving the file under my name as the author
on 28th Feb this year I emailed a spreadsheet out to a client, not knowing the attachment was there. The client, on opening the spreadsheet also opened the attachment and was, naturally not happy to find someone else s details included.
I work in the care industry and this has of course raised data protection issues and i was requested to attend a disciplinary hearing on 5th March. I explained in the hearing that I had sent the spreadsheet without any knowledge of the attachment and had been using the same spreadsheet for the last 3 years and, as it was mine did not think that someone else would add anything on.
My Firm today issued me with a final written warning saying they did not consider it a satisfactory explanation as it was my responsibility to ensure any correspondence sent to customers, clients or any 3rd party was accurate and fit for purpose.
Whilst I realise the consequences this could have had for the company i do not feel this decision was fair - should I be expected to check every spreadsheet i have just in case someone else has added an attachment without my knowledge? Surely a verbal or 1st written warning would have been more appropriate
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.

Ben Jones :

How long have you worked there for?

Customer:

3 years last october

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

Customer:

Thanks

Ben Jones :

By the way is that new employee still with the company - were they asked for their side of the story?

Customer:

Yes she is but she was not asked anything to my knowledge

Ben Jones :

OK thanks, XXXXX XXXXX explain the law in these circumstances. When it comes to misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.


 


In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:



  • Conducts a reasonable investigation;

  • Follows a fair disciplinary procedure; and

  • Shows they had reasonable grounds to believe the employee was guilty.


 


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. I would say that the employer should have spoken to the other employee if they were aware of her involvement in this and try to get her side of the story and seek an explanation of what may happened.


 


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 formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. You got a final one and whilst this may seem unfair it could also be reasonable but it would depend on the investigation, what the employer found out through it and how serious they perceived your actions to be.


 


In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred or that you were definitely guilty. 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 they linked your name to the file and there was no other plausible explanation for them they could have taken the actions they did in this case.


 


If there are any doubts about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the appeal does not succeed then the only option for you after that is to resign and claim constructive dismissal in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. 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:

Thanks

Customer:

yrs thank yiu

Ben Jones :

You are most welcome, all the best

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