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Ben Jones
Ben Jones, Solicitor
Category: UK Employment Law
Satisfied Customers: 38518
Experience:  Expert in UK Employment Law
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Facing a Gross dismissal charge after conducting an affair

Resolved Question:

Facing a Gross dismissal charge after conducting an affair on work e-mail and sending sexually detailed e-mails using work e-mail. Should have used my I phone, but is this really grounds for Gross Misconduct? - it is a one off, it does not irretrievably break the employer/employee relationship - seems a bit harsh to me.

I mean The Power of Love is a force from above, beyond our control.
Submitted: 10 months ago.
Category: UK Employment Law
Expert:  Ben Jones replied 10 months ago.

Ben Jones :

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

Ben Jones :

Please note that as a practising solicitor I am often in and out of meetings, travelling, or even at court when I pick your question up. This may even occur at evenings and weekends. Therefore, I apologise in advance if there is a slight delay in getting back to you. Rest assured that I am dealing with your query and will respond ASAP. You do not have to wait here and you will receive an email as soon as I have responded. For now please let me know how long have you worked there?

Customer: 2 years
Ben Jones :

Many thanks for your patience. There is no actual definition of what gross misconduct can amount to and this can either be covered by a specific disciplinary policy in work which lists certain things as GM, or by looking at general law and case law and establishing it through that.


 


If there is a policy in your workplace which specifically lists using company emails/computers to send sexually explicit material then it is likely that this can be treated as GM.


 


On the other hand, there has been case law where accessing or sending content of a sexual/pornographic nature has amounted to an offence serious enough to justify dismissal.


 


It is always important to consider the context of such situations though, so if this was a private conversation between two adults, where neither has found this offensive and it has not affected the business or other employees, these would all be mitigating factors which should be taken into account by the employer when reaching a decision.


 


In the end, the truth is that no one can say with full certainty whether something will lawfully amount to GM or not. One judge hearing your case on one day can come to a completely different conclusion to another Judge sitting on another day. So whilst you can challenge the allegations at the disciplinary and also have the right to appeal the outcome, if the appeal is rejected, your only way forward is to make a claim for unfair dismissal in the employment tribunal. That is when things become that bit more uncertain and you need to seek further professional advice before deciding on whether to embark on a claim.

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

Customer: In the disciplinary hearing I was completely taken aback by the suggestion of Gross Misconduct I was expecting a slap on the wrist and a written warning, because the mails were between 2 consenting adults and did not affect anyone else. They kept referring to the catch all the Gross misuse of IT systems constitutes Gross Misconduct. I did not see it like that.
Customer: The decision will be within the next 7 calendar days, but I suspect it was made before the meeting. What are the chances of an appeal being successful?
Ben Jones :

No one can predict that - it is in the hands of the employer. Someone new should consider the appeal, so it would have to be a manager who has not been involved in this so far, but predicting the chances of a successful appeal is impossible, especially as this will be down to the decision of one person

Customer: I have worked there for 10 years on and off, permanent 3 years contracting for 5 and permanent for 2, does previous exemplary record not come into thid
Ben Jones :

yes it does but in your case you will only have continuous employment for 2 years, it is nevertheless a consideration they need to take into account

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, or if you are unhappy for some reason with the advice - please get back to me and I will assist further as best as I can. Thank you very much

Ben Jones, Solicitor
Satisfied Customers: 38518
Experience: Expert in UK Employment Law
Ben Jones and other UK Employment Law Specialists are ready to help you

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