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On 9th January last year I had a meeting with my line manager…

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On 9th January last year...
On 9th January last year I had a meeting with my line manager and an HR rep. It was to discuss a conversation I had with a colleague which they believed I disclosed confidential info.
The closing paragraph of letter states "as discussed, I have decided not to deal with the situation via the disciplinary policy on this occasion, however, if I become aware of any further episodes of such behaviour, I will have no option but to peruse through the formal route of action" it also states "we are here to support you as a new manager and understand that you may require some guidance in such conversations. Adele will arrange some coaching for you shortly."

On 3rd January THIS year I had an invite to attend an investigatory meeting to investigate the alleged offence of disclosure of confidential information.
A divisional manager recently eft the business, I do not know the facts why however I did carry out some enquiries into his suspicious activity a month or two ago. In a passing conversation with a colleague where they said "I see ????? Has left, I wonder why that is?" I responded with "not sure but I know he was potentially dodgy as I did a bit of surveillance on him for suspicious activity a while back".

In my eyes, although not the best thing to say I do not class that as confidential information. Especially not knowing why the individual left would mean that any conversation would just be speculation and disclosure of actual information(knowingly anyway).

Anyway, between getting the letter inviting me for investigation and the actual meeting (24hrs and 10 minutes) I was allowed to work.

At yesterday's meeting I was handed a suspension letter but then allowed to work for a further hour or so. I also offered them my laptop while on suspension and they stated they did not need this. this means I still have access to the work network and could access sensitive/confidential information if I so wished.


My question is this, they are dealing with this as gross misconduct and so ultimate outcome could be dismissal. however, due to the fact that:-

1. I was never given the opportunity to improve as they said I would be in the first letter with coaching (which never happened).
2. Allowed to work between invite to investigation and actual investigation.
3. Allowed network access during suspension which means still have access to co fine tail information, surely if they were that concerned they would have taken the laptop away when I mentioned it?


Can I still be dismissed??.

Regards

Steve piercy
Submitted: 5 years ago.Category: UK Employment Law
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Answered in 3 hours by:
1/4/2013
Solicitor: Senior Partner, Solicitor replied 5 years ago
Senior Partner
Senior Partner, Solicitor
Category: UK Employment Law
Satisfied Customers: 13,329
Experience: 30 years experience
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Hi Steve, thank you for your question.

I think the first thing to say is that they way they handled it so far does not really impact on whether they can dismiss you. An employer can investigate and then suspend pending a disciplinary. If they do not follow the right processes of course if you are dismissed the dismissal may be procedurally unfair.

I do think however that you have a strong defence here. First, because no disciplinary process was followed before, this must be treated as a first offence and it does not sound a serious one. Secondly, I agree with you that although the remark may have been thoughtless , it is hardly a disclosure of confidential information about the company's trade or affairs. It was defamatory if untrue but really only an expression of a opinion. Thirdly as you point out the promised you some guidance on this issue and never gave it to you. You should make all these points at the disciplinary and make sure they are minuted. Take a colleague or union rep if only to keep notes.

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Customer reply replied 5 years ago
Does the fact they have knowingly allowed me to carry on working (allbeit only for an hour after suspension) and allowed me to have access to confidential information via the works laptop I have whilst on suspension undermine their ability to dismiss for such an offence?
I must not be deemed that much of a risk to the business if, during suspension, they have allowed me to have access to said info?

Many thanks for response so far...

Steve
Solicitor: Senior Partner, Solicitor replied 5 years ago
The fact that they let you go on working and continued to allow you access suggests that suspension was not appropriate or necessary but that in itself does not stop them form dismissing you. You could of course raise a grievance about your treatment but I doubt if it would get you anywhere. As you say it was only for an hour. If you are dismissed then it may be some evidence that the dismissal was not really justified.
Senior Partner
Senior Partner, Solicitor
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Customer reply replied 5 years ago
Hi there, I have my disciplinary tomorrow. I received the notes today and there are two written interviews done with witnesses. On both the typed date of 07/01/2013 has been manually changed to 17/01/2013. On one set of notes the time started is 9.40 but time ended is 9.05. Also at the bottom they have failed to print their names so all I have is 3 sets of swirls. Anything I would do, can I refuse to accept as evidence?
Solicitor: Senior Partner, Solicitor replied 5 years ago
You can certainly question the validity of the statements. You can ask the witnesses if they gave those statements , they should either allow you also questions of the witnesses in person or to submit written questions to be answered if the witness is not present. If they fail to do this then the process may be unfair.
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Customer reply replied 5 years ago

Where abouts are you based, it would be good to let you see the entire pack before i walk into the disciplinary next week???

any opportunity or way we could do this for a fee?

Solicitor: Senior Partner, Solicitor replied 5 years ago
Unfortunately under the rules of the site I can only deal through the website. Do you have a union who can help? I would take a work colleague with you if you cant get a union rep.

I am happy ot look at the info if you can scan it and attach it but you need to remove names etc. Otherwise if you have a dropbox you can put them in there.
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Customer reply replied 5 years ago
just photographed them and have 43 images, what next???
Solicitor: Senior Partner, Solicitor replied 5 years ago
I doubt if you can attach that much to the reply panel. I think there is a size limit . It sounds a lot to review

What are the nature of the questions you have?
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Customer reply replied 5 years ago
I just need a failrly decent impartial of the case. So far looking though it I have found one extra page of notes that I will be asking to remove as its not signed by by me and is page 4 out of 3. But in one of the interviews with one of the witnesses the questions is asked of him "have you disclosed this to anyone else", he states "I may have mentioned it in passing yes, but cannot remember who to". Surely that puts him ine xactly the same boata s me in that he has "disclosed" confidential info? Of course if asked his defence could be "i didnt know if was confidential" but equally that is my defence also? see attached imagegraphic
Solicitor: Senior Partner, Solicitor replied 5 years ago
The fact that one of the other members of staff also disclosed material is not a defence as such ,but if they are treated differently it would or could make your treatment unfair.
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Customer reply replied 5 years ago

and what would your opinion of the extract be?

They are being treated differently already in that they are still in post or does it need to be more than that?

Solicitor: Senior Partner, Solicitor replied 5 years ago
To be honest I don'd draw much conclusion as i do not have the background but it does look as if they were only seeking evidence against you and not really challenging the conduct of the other employee. If other employees were doing the same things and to the same extent then clearly it is not fair to subject you to disciplinary action when you are not subject to it.
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Customer reply replied 5 years ago

okay last question... I think. Apologies for so many, I am just anxious to get this done right.

Gross Misconduct - Is where the trust between employer and emplyee is DESTROYED completely. In gross misconduct cases the employer can choose to dismiss. However, in General Misconduct cases and where there are no disciplinary letters on file the employer may not dismiss, i.e. there has to be record of previous disciplinary warnings.

Therefore, if I can get it in writing the fact that I was allowed to work after suspension and therefore have access to confidential information as well as being allowed to keep laptop and blackberry during said time this must surely show that there was still an element of trust between Employer and Employee? If this is the case then the accusation of Gross Misconduct cannot be persued due to this very fact and should be treated as general misconduct, in which case a dismissal cannot be the punishment.

I am along the right lines?

Solicitor: Senior Partner, Solicitor replied 5 years ago
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