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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50161
Experience:  Qualified Employment Solicitor
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I am a manager at a preschool and found a mobile phone at work.

Customer Question

I am a manager at a preschool and found a mobile phone at work. To determine who it belonged to I checked the call history and text messages. Upon checking I discovered messages and determined that the phone belongs to a member of my staff who looks after children. The messages show that they has been having an affair with a vulnerable mother of a child that we look after at our preschool and also that they have been involved in buying and taking drugs. This information will damage our preschool and as a result this member of staff has to go. How do I stand legally to dismiss this member of staff considering the messages were found on their personal phone.
Submitted: 5 years ago.
Category: Employment Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. Please let me know how long has this member of staff worked there for?
Customer: replied 5 years ago.

Almost 2 years

Expert:  Ben Jones replied 5 years ago.
If an employee has been continuously employed with their employer for at least 12 months they will be protected against unfair dismissal. That means that to fairly dismiss them their employer has to show that there was a potentially fair reason for dismissal and that a fair dismissal procedure was followed.

According to the Employment Rights Act 1996 there are five separate reasons that an employer could use to show that a dismissal was fair: conduct, capability, redundancy, illegality or some other substantial reason (SOSR). The employer will not only need to show that the dismissal was for one of those reasons, but also justify that it was appropriate and reasonable to use in the circumstances.

This is a tricky situation - you have the necessary evidence but the issue is how it was obtained. Something that will help you is the fact that you had not gone deliberately behind the employee's back to unearth evidence about them and it just happened to be something you stumbled upon in the circumstances. One may still argue that once you had read one message you should have stopped rather than continuing to gather more evidence by reading more messages.

So there is certainly enough there to contemplate dismissal, the fairness of your actions could be brought into question but I would hope there is enough to justify the dismissal as it is.

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