Threat of Gross Misconduct dismissal for using internet. Where do I stand?

[Barry031261]

I was called into my employers office today at 3.30 (just before breaking up for Xmas @ 4.30!) and told that my internet access had been logged over the previous 3 months and that because he had evidence that I had used it during the working day that I was going to be dismissed for Gross misconduct!

Does anyone here know the law on this?

I work as a designer/production manager for a small printing company for over 6 years, and spend my day tied to a computer.
I admitted that I had logged on occasionally during the day (hard to deny it when presented with printouts, ha ah) but it wasn't ever for very long and only then when I was waiting for another task to be completed by my computer. My work was never compromised. The sites I accessed were nothing out of the ordinary...ebay, CAG, holidays etc etc.

I believe the motive for his action was to try and avoid paying me for a massive design job that I worked on in my own time, on his behalf, and with agreement between us that I would be paid separately to my salary. This amounted to £1,500 and I have been waiting for this for over a year now.
At the end of every month since then I have asked whether he would be able to pay this and each time he has said that his cashflow was tight and that he would sort it as soon as possible.

Now, I have been very patient with him over this but I finally had a serious chat with him at the end of last month and he promised that he would pay this money before xmas. (Does anyone see a connection yet? Thought so!)

When he called me into his office I was expecting some good news and a healthy cheque for my bank manager so I was knocked sideways by this accusation and the consequences so I'm afraid I let the side down by not standing up and fighting. I left the office with my chin on the floor.

But now I've had time to think it through I now have my fighting head on again and I would like to return after xmas armed with facts and figures so if anyone has any advice I would be very grateful.

I wish you all a Merry Xmas and a Happy New Year,

Barry

[make them aktiv runners]

Ell-enn is the best one for this.

He could be trying to reduce the £1500 due the cashflow crisis. Although the logged internet usage is after you did the job in your own time, he may try getting you to admit the internet usage occurred back then too. As you had time between tasks to use the internet then technically you could have done some of the private work then instead, ie it would not cost him £1500.

An employment tribunal would look at both issues and look for the link between them (as you have shown us). They would also require your employer to prove his internet policy for staff. If you have not signed a document stating that you will not access non-work related sites during paid for hours, then he has an uphill battle. The frequency, amount of time and type of sites would also be looked at (no illegal sites there).

They would also look at what information your employer has given you to show which offences will result in which type of action. Again without evidence, he is a little stuck.

[Monty2007]

Hi

Do you have a company policy which makes reference to the personal use of your computer/Internet access? If there is then you are obviously okay.

If your company handbook does not explicitly make reference, and given that you were not looking at anything that could be interpreted as unreasonable (e.g. porn or gambling) then I think that you would have a case for unfair dismissal and take them to a tribunal. The grounds would be that you were allowed by their non-action to use the internet and your case would be further supported if there is a common acceptance among staff that this was tolerated while on breaks or between jobs.

Where I work we have a written policy that staff can use the internet at a reasonable level for personal use (not more than 1 hr per day) and not to access adult related sites or those which could compromise the company. This is included in our company handbook and conditions of employment.

Irrespective of his motives you need to demonstrate that this was either allowed or had been established through common practice throughout your company.

[Barry031261]

Thankyou for your prompt replies. Your comments and advice are greatly appreciated.

The Company I work for does not have a policy, either written or indeed verbal, relating to the personal use of the internet. In fact the company doesn't even have a company handbook setting out any rules or regulations. It is a very small business with only 7 staff in total and the owner has been very slack on policies and paperwork in general. I've being employed there for over 6 years and neither I, nor any of the staff, have a written Contract of Employment.

I'm convinced this whole incident is related to the monies he currently owes me and he is trying his best to wriggle out of his responsibilities. I know him to be an extremely frugile ('tight as a ducks A**' in other words) man.

There has never been an issue with personal internet use prior to this and I am convinced that he was aware that it occurred. In fact I have seem him doing the self same thing...but then he does own the company.

Are there any written laws, rules or regulations that anyone can suggest I read on this matter as I really do wish to be fully prepared when I return in the New Year.

Thanks once again.

[Sidewinder]

So have you been dismissed, or just warned that you will be dismissed after Chrstmas? Have you received notice of a disciplinary hearing? Is it common practice for employees to access the internet for non work related purposes?

In short, if your company has no policy statement regarding use of Internet and E mail facilities and the consequences of misuse then you cannot be fairly dismissed. Period. If it is generally common for people to use the internet, then in the absence of a policy it is Custom and Practice and has become an implied term of your contract. If you do not have a contract which specifies what you can do and not do then how can you be in breach of that contract?

Further to this, the absence of a policy which warns for example that all internet use, telephone use and e mail use is subject to monitoring (for whatever reason) may render the employer liable to a breach of the Human Rights Act where provision is made for the 'right to respect for private and family life, home and correspondence'.

If your employer intends to take disciplinary action then he must abide by the statutory minimum provisions specified in the Employment Act (2002) which came into force in October 2004. He must therefore give written notice of a disciplinary hearing, outlining the allegations against you and allowing sufficient time to gather evidence in your defence. He must also specify that you have the right to be accompanied. After the meeting, you must be given written notice of any action taken by the employer and given the right to appeal. If any of these are denied then the dismissal will usually be 'automatically unfair'

Your defence at any hearing would obviously be that you have never been provided with a policy relating to internet use, and that through Custom and Practice, it has always been deemed acceptable. You were not made aware that your use was being monitored and consider that this is not only a breach of contract on the employer's part, but may also be an infringement of your Human Rights under the right to privacy of communications.

Regarding the £1500, have you anything in writing promising this payment? Failure to pay for what was previously agreed might also constitute a breach of contract, but at the very least you are entitled to know when it might be paid, how (eg in instalments) or why the employer is unwilling to now pay you. Was the work satisfactory.

You do not need a written contract of employement but should legally have received a statement of terms detailing hours, pay etc within 8 weeks of starting work. Your employer should ideally have a framework of supplementary terms setting out disciplinary & grievance procedures, H&S policies, holiday and sick pay policies etc. The absence of this makes it impossible to have effective policies in place to deal with breaches of contract or instances of 'misconduct'.

[Ell-enn]

Completely agree with Sidewinder - if there is no policy detailing the use of the internet or what the consequences of using it could be, or indeed any notice to employees advising that their internet, email or telephone usage would be monitored then I would say that you have been unfairly dismissed and you need to appeal against this decision.

Kind Regards

Ell-enn

[advisee]

If you do get dismissed for this, then do the following:

-employment tribunal claim for unfair dismissal

-small claims court claim for your £1500 contractual dispute.

However.... there is some old case law that could be relevant to your situation, I can't remember the reference but it was something to do with people who crewed a ship being offered the wages for a man that died in return for doing their work, then the owner being able to wriggle out of it by saying that they didn't in reality do anything extra - I can look up the reference for this if it is needed.

Be aware that doing freelance work for your employer can be frought with problems.

[crash3903]

I can't remember the case off hand but there is one where a lady was dismissed for using the internet and making private calls from work. At the hearing the judge said that the company has to accept a certain amount of private usage of the internet, email or company phone systems, as long as it is not too excessive and does not break any civil or criminal laws. "Too excessive" is of course a subjective test and will be tested at any hearing

This article may shed some light on your position

I would also track down a friendly employment law solicitor that will give you 30 minutes for a small fee or a free chat over the phone

Good luck with it all

Regards

[Barry031261]

Thank you all for your fantastic words of wisdom and advice, and for that great link.

The meeting I had on Friday was left open ended for further discussions upon our return in the New Year and I now have a feeling that this meeting might not go exactly to my employers plans

There are No policies in place to determine any use of internet, email or telecommunications whatsoever.

With the knowledge that the monitoring of my usage may be an infringment of my Human Rights might well be a total surprise to my employer, and one that I intend to use to maximum effect.

With regard to the £1500 owed to me for the design job I undertook, there was no written contract for this...just a verbal agreement. The job was satisfactory and was subsequently printed, delivered and paid for by our client. My employer did make a small 'token' payment to me in September this year of £200.00 whilst confirming that he would do everything he could to settle the balance ASAP.

Thank you all once again and if you have any further advice on how best to approach the meeting in the New Year I would be very grateful.

Barry

[crash3903]

Hi Barry

One thing I would say about the HRA is that a lot of people throw it about in anger and stupid arguments. But I would remember that in light of the fact that he has no policy in place he would need to show that you have used the internet to excess and it has impacted on his business. Personally I would ask for him to disclose his usage as a comparison but that is a long way down the road

Use the material you have at your disposal in your armory but don't use all your weapons of mass destruction at once - Personally I think this could be sorted out over a beer or 2

Good luck and have a good Christmas

[advisee]

Originally Posted by Barry031261

With regard to the £1500 owed to me for the design job I undertook, there was no written contract for this...just a verbal agreement. The job was satisfactory and was subsequently printed, delivered and paid for by our client. My employer did make a small 'token' payment to me in September this year of £200.00 whilst confirming that he would do everything he could to settle the balance ASAP.

Barry,

If you have any emails/letters supporting the above, then print them off. For a claim for this, you essentially have six years to claim, whereas for the employment aspects you have three months.

However, it may well be in your interests to agree to some kind of "deal" where the £1300 gets written off in exchange for a written letter that any and all disciplinary proceedings against you get withdrawn. That said, it is a lot of money....

Don't forget to declare your £200 of untaxed income to HMRC.

[Curlyben]

Originally Posted by Barry031261

With the knowledge that the monitoring of my usage may be an infringment of my Human Rights might well be a total surprise to my employer, and one that I intend to use to maximum effect.

Bear in mind that you are using a COMPANY machine and as such not your personal property.
Human rights have NO bearing on this.

[advisee]

Originally Posted by Curlyben

Bear in mind that you are using a COMPANY machine and as such not your personal property.
Human rights have NO bearing on this.

Wasn't there a recent EAT case where the opposite to your statement was held to be true? Can't find the reference off hand.

IIRC it related to the employers' implied duty of trust and confidence, right to privacy etc.

[ukaviator]

So for 3 months the employer has known that you have been on the Internet during work time, and they have only just now said something. A good manager would have said something after the first week of being found out.

How long do you spend on the internet during work times?

The reason i ask, is that an IBM employee won his case because he was addicted to the internet, and had to use it during work time.

If you have an inability to control your internet use, feel restless or irritable when attempting to cut down or stop Internet use, go through withdrawal when offline (increased depression, anxiety), you may have this addiction problem.

Internet addiction is similar to counseling for other addictive behaviors.The best results are often obtained using a mixture of education, insight oriented and behavioral techniques which are aimed at reducing a clearly defined set of behaviors.

So if you think you have an internet addiction, maybe an idea to use this in your case, and turn things around. The last paragraph in the link below, from the IBM story, may help your case.

Man sues IBM after internet porn dismissal - Times Online