what is the disciplinary process?

[debt_mountain]

can someone point of the the law regarding the process of be paid off for computer misuse.

This is for a work collegue. Thanks

[Weird Al Yankovic]

Can you be a little clearer please?

[Sidewinder]

I gather from your post that your friend has been sacked for computer misuse?

Much of what has led up to the dismissal will depend on company policy, length of service and whether the misuse has been classed as gross misconduct. You should have a handbook or access to company policy regarding use of computers - what does this say?

Many companies have a statement for example, which specifies that computers are provided strictly for business use and that using them for anything else could result in disciplinary action. Alternatively, a certain amount of non-business use may be permitted (for example using non-business sites in break times, or accessing personal web-based e mail) but that downloading executable files, accessing gambling or pornography websites, installing non-approved software, using chatrooms or instant messaging programmes is not permitting and may be construed as gross misconduct for which disciplinary action may be taken which may result in your dismissal.

The legal perspective will depend on how the company policy is defined, but in cases of 'misconduct' your colleague would be entitled to at least a written invitation to a disciplinary hearing outlining what he/she is alleged to have done wrong, a right to have a colleague or Union representative present at the meeting, and written advice of the outcome of the meeting witha right to appeal the decision if desired. For misconduct, it would be reasonable to have a verbal warning, first written warning or final written warning prior to any decision being made to dismiss, although the employer wouldn't have to give all of these. He could for example hold a disciplinary hearing and issue a final written warning in the first instance if the misuse was deemed serious enough, then dismiss the employee if the behaviour was repeated. He must though act 'reasonably' and 'fairly' taking into account company policy and any action taken with other staff in the past for similar breaches. For warnings, the worker should be given a timeframe in which to improve the behaviour, and advised of the length of time that the warning will remain on record.

If the misuse of the computer was deemed serious enough to be classed as 'gross misconduct' then the employer would still have to allow the 'statutory minimum procedures' of invitation with details of the alleged misconduct, disciplinary meeting with the right to be accompanied, written decision and right of appeal. If he wished to stop the employee working immediately, he could do this by either suspending the person pending the disciplinary hearing, or in cases where the behaviour is sufficient to warrant summary dismissal, he could dismiss without a hearing, providing that he gives written details of the reason for dismissal, and the right to appeal the dismissal. This would only be for very rare cases where the action of the employee is clear cut and dismissal is the only option, or where the employer or his business would be at risk of harm if the process was delayed. He must however still give written notice of the dismissal and a right to appeal.

Essentially, any dismissal will be automatically unfair if the minimum procedures of written notice of allegation and invitation to a hearing, disciplinary hearing with the right to be accompanied, written notification of the outcome of the meeting and a right of appeal are not given.

[debt_mountain]

thanks for the quick replies. They are having his computer checked at the moment but the main issue mentioned is the amount of time it has been used during work time not what has been looked at. The company allow use during breaks etc.

He has not completed the last computer use online training and had therefore not signed it. So not sure if he can state he was not fully aware of the policy. He feels he has not abused the procedure as he works at least 1 hour extra per day anyway. Thanks

[Sidewinder]

Whilst ignorance can be no defence for some things, it is entirely possible that your colleague could argue that as personal use is permitted in your own time that he felt it OK to 'overlap' slightly especially bearing in mind that he always makes sure that the the hours that he works are in the company's favour. The employer might also acknowledge that training and therefore policy understanding might have been lacking....

He might be OK but it depends what the teccies manage to find out from the computer. Routinely clearing browser history is normally good practice, even if history is kept on the server to the extent that users' individual activity can be seen. If it leads to a disciplinary and evidence is shown to prove that he has done something wrong, his best option may be to hold his hands up to a little unwitting indiscretion, apologise and say that he has learned his lesson. It may then be agreed to be a minor infringement worthy of a warning and he will then know where the lines are drawn.

[debt_mountain]

thanks again. The only stuff he does is a few personal emails as browsing cag.

If they did try to say he spent too much on it who is to say he actually read ever page he accessed.

He said he would often just save it to a memory stick or his mobile and read it at some other time during a break.

Thanks

[Sidewinder]

Disciplinary for that would be harsh, and the logic sounds perfectly plausible. Fingers crossed!

[Weird Al Yankovic]

I'd say that considering he works an extra hour per day, (unpaid?), but then to discipline him for unauthorised use of a pc, whilst also allowing him to use it during breaks, would be seen as petty, so long as it is not found he surfs for about 5 hours of the day.

Tell us the results of the investigation.

[cal37]

Can i just add to sidewinder,s post that, failure to follow the standard procedure will indeed amount to unfair dismissal unless the employer can show that the failure to follow the procedure would have made no difference to the outcome.

Also a procedural unfairness that does not fall within the SDDP may be totally excused and render the dismissal fair if it can be shown that, on balance, the employee would have been dismissed in any event.