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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 51227
Experience:  Qualified Employment Solicitor
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Someone I know has been fired for gross misconduct for using

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Good afternoon,Someone I know has been fired for gross misconduct for using the internet on a company computer.My question is, they defined the period that these infractions took place as between say 15th January and 15th February.When asked for evidence to back up these claims the company produced a report of web usage for dates in March.The disciplinary letter said that the allegation is that throughout the xx of January to the xx February you.... etc etc etc.The report however is about web usage from March. I don’t think that is right as it is after the stated dates. I would be looking to get that removed for their appeal and need some advice on that point.Thanks

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

How long have they worked there for?

Customer: replied 3 months ago.
4 years

Did the report show the same breaches in March as the ones that are alleged to have happened in Jan/Feb?

Customer: replied 3 months ago.
The allegation from JAN/FEB is that this person accessed category's of websites. (Violence, Gambling etc), or rather this persons computer did. It gave no details as to websites etc.The report from March is completely different and provides specific websites that this computer accessed.Neither report provides times, only dates.Also the computer this person works at is not passworded and anyone can access it. The list of sites in the second report includes Facebook. This person does not have facebook, and never has (They are over 60 years old). I have lodged a freedom of information request with facebook so that it comes back that they hold no information on this person.It has to call into question the second report right?
Customer: replied 3 months ago.
basically there were no specific websites alleged in Jan/Feb, only category's. So they can't even tell this person what websites they are accused of accessing.The March report holds specific websites but again, that the computer which is not passworded has accessed.

Thank you. There are valid points here but you also have to bear in mind that an employer does not need concrete evidence to make a formal disciplinary decision. For example, they may have accused the person of accessing categories of websites in Jan/Feb only to then find out he has accessed other specific websites in Mar/Apr. If these latter websites still put him in breach of their policies and procedures, they may still use this as evidence of the general allegation of inappropriate use of a work computer as they still show up a potential breach on their part.

As I mentioned, the employer does not need concrete proof that someone has done something. In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:

{C}· Conducts a reasonable investigation

{C}· Follows a fair disciplinary procedure; and

{C}· Shows they had reasonable grounds to believe the employee was guilty

The requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that the penalty was one that a reasonable employer would have taken in the circumstances.

However, any holes in their evidence, as you have identified, should be brought to the employer’s attention to try and mitigate their case.

I trust this has answered your query. Please take a second to leave a positive rating by selecting 3, 4 or 5 stars above - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please reply on here and I will assist as best as I can. Thank you

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