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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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Hi we have a sales rep who has been with us for 3 years. She

Resolved Question:

Hi we have a sales rep who has been with us for 3 years. She relocated to London (her choice) and we said we would see how it goes. Since relocating productivity has dropped. I have suspected for some time that she runs her work life around going to see her son in Birmingham, bring him back to london, take him back etc and she denied this when questioned. We have an agreement in place whereby we can track works mobile phones during working hours. This agreement has been signed by her but it does say on it we are doing it for security reasons. I have tracked her for the last 2 weeks and she is either at home or manages a couple of hours work. When asked where she is, she has blatantly lied on many occasions saying she is in Surrey when she is in Oxford etc. We have always checked that she has her mobile phone with her.
We need to address this lack of work but I am uncertain if I can use the tracking information I have to discuss with her ?? Whilst we are unsure about starting the dismissal process at this stage I really do want her to know that we know what she is upto! I am able to give a verbal warning based on this information ?
Thanks
Gill Harrison
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.
tdlawyer :

Hi thanks for your question.

tdlawyer :

My name is***** can assist with this.

tdlawyer :

Is she employed or is she self-employed?

Customer:

She is employed by us and receives a salary, commission and a monthly car allowance and mileage allowance

tdlawyer :

Okay, so you would need to invite her to a disciplinary process if you wanted to take action against her and challenge her formally.

tdlawyer :

You are able to give her a verbal warning yes, if the outcome of any disciplinary hearing is such that you think it is deserved.

Customer:

I know but can I use the mobile tracking data I have printed off as evidence or could this be used against me if for any reason she left and claimed constructive dismissal. Is the tracking an infringement as we say we are tracking for secuirty reasons?

Customer:

sorry against her !

tdlawyer :

If there is an agreement in place that you can track these, then you can use this information, and I don't see how that would be unfairly used against you. Of course the position might be otherwise if you had not got consent to obtain this data, but with it, there is no argument here.

Customer:

Even though the paperwork she has signed said we will track for "security reasons" ?

tdlawyer :

I don't see a big issue here if you're checking the security information and as part of that process you note what you have noted The reality is that none of this is going to be particularly relevant if you don't dismiss her or she doesn't resign.

tdlawyer :

You can't normally use the data for the reasons you're talking about, but equally, what does "security reasons" actually mean.

tdlawyer :

You might have an argument that this includes the safety of the individuals concerned, although you would be right to recognise the issue that you do as to the limits of the use of this data.

Customer:

Am I within my rights during the meeting to advise her that I know she is not working her hours and is not where she says she is?

Customer:

I understsand the part about not being relevant but is she does go on to resign at some point she could cite the tracking as a reason ?

tdlawyer :

You might do better to ask the question, as you have "some queries" based on the evidence/information that you have, rather than accusing her. Accusations are different to enquiries, which reveal information, and then might amount to more sustainable accusations.

tdlawyer :

If that makes sense?

Customer:

Ok reading between the lines it probably isn't a good idea to admit to the tracking and i will have to approach it from a different angle?

tdlawyer :

Well, ideally, if you can, that would take away any issue arising from it.

tdlawyer :

If you do a formal disciplinary process based on whatever you have, you don't have to dismiss her, which is when unfair dismissal issues come into play. The process itself and the concern that will bring might be enough to get the result you want anyway.

tdlawyer :

Does this answer your question today please? Is there anything else you would like to discuss?

Customer:

No thats great thanks.

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