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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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, I have an issue at work, in Nov 2011 I was on a customer

Resolved Question:

Hi,
I have an issue at work, in Nov 2011 I was on a customer site performing some training, whilst on the site, during lunch time, I was having a chat with one of the trainees. I mentioned that I was a bit concerned that my cat was home alone and had was recovering from an operation, it was in a cage at home and I had set up a webcam, so I logged into this webcam on my mobile phone and looked at the image. Last week I was called into a meeting with my manager and our PR woman, recently one of our sales guys visited the customer site, their department manager then complained to my manager that I had been inappropriate and had referred to my webcam as “pussy cam” and that it was deeply offensive, and that they would only purchase more training from us if our company would assure them that this would not happen again and that disciplinary measures are taken. Well today I have been told that I am to receive a written warning and this will be kept on file for 12 months for misconduct. Is this acceptable? Should I accept the warning, or as I have a clean record since 2011, have they left it too long to complain?
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. Are you saying that the client would have withdrawn their custom of the employer did not discipline you?
Customer:

Yes, that is what I believe is happening, however I have not been shown any written evidence that shows this.

Customer:

the issue I have is that as the alleged incident happened over 3 years ago, and there have been no other incidents since then, is it fair that they issue a written warning that stays on record for a further 12 months?

Ben Jones :

That can indeed happen. In fact if things were really bad and the client wanted your dismissal it could even lead to that. What matters is not when the incident took place but when the employer was made aware of it and a complaint received. They are really being driven by the client here, not their own decisions.

To give you an example of how things could have turned out, there are circumstances when an employer may feel forced to move or even dismiss an employee because of pressure from a third party. This pressure may come from a valued customer or from another third party that has a degree of influence over the employer, such as a supplier, the landlord of their premises, etc. Such a dismissal can be deemed fair because it would amount to 'some other substantial reason' (SOSR), which is one of the potentially fair reasons for dismissal allowed under the Employment Rights Act 1996.

It is generally accepted that the reason behind the third party's request is irrelevant and there is no requirement on the employer to establish the truth behind the allegations. What really matters is the how important the third party's continued business is to the employer and what risks there are to that relationship if the employer does not act as per the request.

For example, in the case of Dobie v Burns International Security Services, Mr Dobie was a security guard working for a contractor who supplied security staff to a Council. Friction developed between a senior Council employee and Mr Dobie, with the Council demanding his removal from their site. His employer eventually dismissed him. He made a claim against his employer, however he lost with the decision being that third party pressure to dismiss can amount to a fair reason for dismissal.

Employers must still act reasonably when dismissing, in accordance with established employment principles and would need to undertake some form of investigation and hold a dismissal meeting. They should also consider whether there is any other alternative employment that can be offered to the employee instead of dismissing them because dismissal should only be seen as a last resort. However, in principle, such dismissals can be fair.

I know we are not dealing with a dismissal here but with a warning, however the same principles would apply. If this is a client’s request and they are threatening to withdraw their custom if no disciplinary action is taken then the employer will likely have to do something and discipline you and a written warning would be most appropriate. It is common for such warnings to remain on file for a maximum of 12 months so what has happened here is relatively common, even if the offence took place 3 years ago.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you

Customer:

I was mainly concerned that the complaint was about an alleged incident that was over 3 years ago, surely a complaint should have been raised within a reasonable time period or does that not matter?

Ben Jones : Ideally yes but that is more of an issue if it was an internal complaint, say something raised by a fellow employee. In that case the employer could refuse to deal with it because it was not raised in good time. But when this is a client complaint the employer cannot apply the same rules and tell them they won't deal with t especially as that could risk their business relationship
Ben Jones : does this clarify things a bit more for you?
Customer:

So, are you advising that I should just accept the written warning, as there is no point of law that I can use to appeal with? if so then that I what I will have to do.

Ben Jones : You have nothing to lose by appealing, the worst that could happen is the warning stands so you can still do that. But if the appeal is rejected and the warning stands then you would be best advised to accept it. Does this answer your query?
Customer:

Yes that is what I will do, nothing to lose by appealing.. cheers..

Ben Jones : You are welcome all the best
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