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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45291
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been signed off work with work related strees, anxiety,

Resolved Question:

I have been signed off work with work related strees, anxiety, and depression since Dec 2011. Raised a grievance for bullying and victimisation in Feb 2012 and that is STILL going on. In the meantime an ET1 was raised within time.

Today I received notice of a disciplinary hearing for alleged "mis-use of the companys IT system between Nov 2011 and July 2012" where "..you made a number of internet searches for material of a pornographic nature". Our computers do not automatically lock and anyone may have done it, or even me in a momnet of madness - I really do not remember that far back.

What would be your best advice to me?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Ben Jones :

Many thanks for your patience. What has happened here is that you have been accused of misconduct, which 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.


 


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.


 


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 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 disciplinary results in dismissal then a claim for unfair dismissal can be made 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 :

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? Thanks

Customer:

Hello Ben

Customer:

Hello Ben, this has not answered my question. And today I received the so called supporting innformation:

Customer:

It is confined to a single day (Saturday evening) where my work laptop (not work internet connection) was used to search for porn (no download) and no naked/nude images. Strangely enough also, prior access in the morning (as recorded) was impossible as I was on a flight between Aberdeen and Birmingham. Somebody had also accessed my hotmail account on 9 January 2003 when I didn't even have my work computer - it was at my employers in Aberdeen and I was In Birmingham!

Customer:

What is your view ?

Ben Jones :

I cannot tell you that you are innocent or guilty, and this is not going to have to come down to the employer's investigation into the allegations, because as mentioned above before they can discipline you and take action against you, they must conduct a reasonable investigation and once they have done so and have the required evidence, they will need to make a decision. In coming to this decision they will use not only the evidence from the investigation but also your defence to the allegations which you can raise at the disciplinary. All the factors you have mentioned in your last post are relevant in your defence but the final outcome would also depend on the evidence they have uncovered from their investigation

Customer:

I understand. In terms of consistency, where in 2012 they found hundreds of actual naked pornographic films on the company server and didn't dismiss the culprit, maybe it would be unreasonable to dismiss me ? It would appear that they have singled me out because I brought a grievance, as the issue in question relates to 2011. Just your gut feeling will be fine? Cheers

Ben Jones :

Yes from an initial perspective it does appear to be disproportionate - there was a previous case where images were downloaded and stored and nothing was done, yet they are now trying to discipline you for alleged searching and access of such images. So there is certainly an argument for inconsistency in treatment and you could indeed be the target of victimisation in the circumstances where the employer is trying to 'get back at you' for the complaint you have raised

Ben Jones :

Hi did you get my last response above?

Customer:

Yes, thanks Ben. Will do rating now

Ben Jones :

Ah, thanks for getting back to me, all the best, XXXXX XXXXX resolve this

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45291
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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