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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45343
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hi, I work for a diamond company and there has been a theft

Resolved Question:

Hi,
I work for a diamond company and there has been a theft of several items. My employer wants me to take a polygraph test and I agreed to it without really looking into it. It seems these tests are not 100% accurate and so I am worried about it now. What would you advise?
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. How long have you worked there for?

Please note that due to the time I am going offline but will respond fully first thing in the morning, thanks

Customer:

6 years

Ben Jones :

Many thanks for your patience. There is nothing stopping the employer from asking you to take a polygraph test or using it in their investigation but before they make a decision they should not base it purely on the results of that test and need to have a broader view of what they believe actually happened. This is especially true if the accuracy of such tests is not entirely guaranteed.


 


Now that you have already taken the test the employer will have the results (or should have soon) and can use them in their deliberations. I presume it is not just you that took the test so there will be others that are facing the same as you. I would expect that if your results show something untoward and there is a belief by the employer that you may be guilty, they should use these results to start a further line of inquiry with you and conduct a more thorough investigation by interviewing you and trying to gather more information that would allow them to make a more balanced decision. So they should not just use the results of the test to make a decision and leave it at that.


 


As you have over 2 years’ service with the employer you are protected against unfair dismissal so the employer cannot just go ahead and dismiss you or take any formal disciplinary sanctions without going through a fair disciplinary procedure. You can defend yourself at any potential hearing and you can also appeal the outcome. If this ends up in dismissal, which at this stage there is certainly no indication it is going to go that way, you can also consider a claim for unfair dismissal in the employment tribunal. So you have plenty of rights still to be applied if they are needed.

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? I just need to know whether to close the question or not? Thanks

Customer: Not quite although I have signed a document to say I would take the test I have not actually taken the test yet. Can I change my mind and not do it?
Ben Jones :

yes you can, you cannot be forced to go through with it

Ben Jones :

Has this clarified your position?

Customer:

Yes, so with no actual evidence and just a failed polygraph alone they cannot sack me?

Ben Jones : Well the law allows an employer to dismiss if they have conducted a reasonable investigation and have a genuine belief you are guilty, taking into account whether dismissal is going to be reasonable, such as looking at your service length and disciplinary record
Customer:

Can you define reasonable investigation? And if they do sack/dismiss me are they they still obliged to give fair reference?

Customer:

i.e. are they able to give information regarding test results to future employees?

Ben Jones :

there is no definition of a reasonable investigation - it would always depend on the individual circumstances, what is being investigated, what evidence is potentially available, etc - so in one case a reasonable investigation would be completely different than what it would be in another. Only a tribunal can decide whether the employer's investigation as reasonable. If they dismiss you they can still give a reference and they must be truthful in what they say, so if their investigation shoed that you may have been guilty then they can say that, for example:


1. In the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading.


 


2. In the later case of Cox v Sun Alliance Life Ltd the employer provided a reference that contained details of an employee's alleged misconduct. However, they did not properly investigate these before providing the reference and the employee challenged the information in it. The court decided that an employer will be negligent in providing a reference that refers to an employee’s misconduct unless the employer had carried out an investigation and had reasonable grounds for believing that the misconduct had taken place. This can be applied to other matters forming part of a reference, not just issues of misconduct.

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:

I think that's it now. One last last question. If they do want to question me based on a negative polygraph test how should this be conducted?

Ben Jones :

In what sense?

Customer:

If they take me into the office and start trying to accuse me of things based on the polygraph what should i do? As in should i refuse to speak? should I request somebody else is present?

Ben Jones :

In an investigatory meeting you do not have the legal right to be accompanied, you only have that right in a formal disciplinary. You should not just refuse to answer questions because that may infer you are guilty, or at least that's what they may think. You should maintain your position that you did nothing wrong and provide any other evidence you may have, also pointing out to potential inaccuracies with such tests

Customer:

thanks for your help

Ben Jones :

you are most welcome

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 45343
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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