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Ben Jones
Ben Jones, UK Lawyer
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May wife has been informed by her line manager, in a none disciplinary

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May wife has been informed by her line manager, in a none disciplinary meeting, that use of her company mobile phone may constitute Gross Misconduct. We have been on holiday and data roaming has racked up an enormous bill, some personal use and some business related. On return she was invited by calendar to a meeting. At the meeting the phone bill was brought up, of which she was not aware. This has obviously highlighted the personal use. Her line manager then made her aware that this is classed as gross misconduct, and a meeting would be arranged next week to discuss. I feel the amount of bill is a separate matter and steps should have been taken to cap the bill from her employers end. Her employer was fully aware that she would need to work whilst away, especially given the amount of direct emails and phone calls she received. However our concern is the 'threat' of gross misconduct.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has she worked there for? Is there a policy in the workplace which deals with the use of phone when in the employee's possession?
Customer: replied 2 years ago.

Evening. 16 months. She doesn't specifically remember signing anything regarding mobile phone usage, however it is a big company and she is in a senior management position so I would assume yes.

The main issue she will face here is that if she has been continuously employed at her place of work for less than 2 years then her employment rights will unfortunately be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.).
If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. Her employer would either have to allow her to work that notice period and pay her as normal, or they will have to pay her in lieu of notice.
So we are really looking at whether this can amount to gross misconduct or not as it will determine her rights on whether she receives a notice period or not. It will not affect her rights against dismissal unfortunately.
She needs to check whether there is a specific policy on mobile phone usage, what it says, what her responsibilities under it are and whether she has broken it. Unauthorised use of company property could amount to gross misconduct and it would depend on whether there is a disciplinary policy stating that could be the case and the seriousness of the specific act. There is no requirement on employers to place a cap on mobile phone usage if they have a policy requiring employees to limit the usage themselves.
So if the employer wants to dismiss they can legally do so without her being able to challenge it. The issue then it to argue that this is not gross misconduct and at least get her entitlement to the notice period she is due.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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