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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44883
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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hi last Saturday I left my phone unlocked at work and thought

Customer Question

hi last Saturday I left my phone unlocked at work and thought I would collect it on my next shift. A duty manager contacted the area manager because he had seen text messages that he thought was inappropriate. My area manager then without my permission removed the phone from my workplace and took it home returning it 1600 hours the next day(she didn't admit to me that she took it).
Since last Saturday shes informed members of management that shes has taken the phone and photographed some texts which shes going to use to bring me to a disciplinary over an aledged relationship with another member of the team (which isn't true weve texted as friends). Firstly can she remove the phone and take it home potentially manipulating those texts 2 can she use should evidence against me
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Why would you think the messages would be manipulated - surely one can see when they were sent/received so it can show that it was not when you hyad the phone on you?

JACUSTOMER-3dbjzq6j- :

the area manager doesnt play by the rules of profession conduct i wouldnt put it past her to alter texts etc and photograph them

JACUSTOMER-3dbjzq6j- :

im annoyed that shes took my phone to her residence and viewed it theres lots of very personal data on it

Ben Jones :

How long have you worked there for?

JACUSTOMER-3dbjzq6j- :

23 years

JACUSTOMER-3dbjzq6j- :

i need to know if she can use the data she states shes photographed because she took the phone home without permission its a private phone not a company one

Ben Jones :

ok as mentioned it would be possible to see when a text was sent or received so if you are accused of sending inappropriate texts you would be able to show that this was not done at a time when the phone was in your possession and as such you should be able to defend any such allegations against you. As to taking the phone with her this should not have happened and could amount to a breach of the implied term of trust and confidence which exists in every employment relationship. As this was your own personal phone and not a work phone, they should have just kept it safe and left it at that - they may have gone into it to try and find out whose it was but nothing further than that, certainly not go through it and look at anything in it. Had you sent the texts to someone in error then they could have used this as evidence but to go through it without your permission would amount to a breach of trust. Whilst there is nothing stopping them from actually going ahead and trying to sue this as evidence as mentioned you can defend this in the disciplinary and depending on the outcome, you could consider taking this further, for example if you are dismissed you could make a claim for unfair dismissal in the employment tribunal.

JACUSTOMER-3dbjzq6j- :

Not sure what you refer to as the timing off the texts?? my boss is trying to accuse me off seeing another member of the team which isnt the case and i can defend that . I just need to know if I can refuse to answer any questions she may have because she could of maniplulated my phones content and take action against her i think your saying shes entitled to go through my phone to find out who it belonged to however they were aware because they took it out of my work jacket with my name tag on. I will be taking a grievance out against her for unprofessional behaviour and victimisation

Ben Jones :

ok sorry I thought they were trying to discipline you for sending texts, but if that is not the case then it would not matter. Also the concerns that the texts may be manipulated will not be relevant - as mentioned you can check when a text was sent or received and you cannot manipulate texts which have already been sent or received so your concerns that she can do that will also not be relevant as that won't be possible. I would not go as far as saying you should refuse to answer all questions as that could make you look guilty on its own but you should defend any allegations against you and also ask for any evidence obtained unfairly not to be included

JACUSTOMER-3dbjzq6j- :

ok thanks hate the fact thats shes taken my phone home over night and read my personal data

Ben Jones :

I fully understand, this should not have happened, it is private property and the employer has gone beyond what is acceptable in the circumstances

JACUSTOMER-3dbjzq6j- :

so should i discuss the texts now that shes seen them or tell her that im not discussing them because of the way shes obtained the information

Ben Jones :

you can discuss them now and if you are raising a grievance, which you can, you can mention them there as well

Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

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

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