Alleged gross misconduct thoughts please.

[capt1964]

I have recently been interviewed for a new position in our company. I work in IT. Prior to the interview I saw the interview questions on another users machine. After the interview I was informed that an allegation had been made that I had sight of the questions and generic answers. I have admitted to the access and seeing the document. However I did not intentionally locate these documents I discovered them whilst carrying out my normal duties. Would this be deemed as Gross misconduct. I have been sent home from work

[MARTIN3030]

Welcome to the site.Will move your post to the appropriate place.

[advisee]

They'll probably try to suggest that it is gross misconduct, but I don't think it is.

 

Suggestion - go online, and do a search for some generic interview questions and answers.... these are your evidence that your seeing (the employers questions) didn't give you an unfair advantage.

 

Is this general questions "where you you want to be in five years", "what sort of animal are you", "what are your strengths and weaknesses" or is it some technical IT based questions?

[capt1964]

The questions were technical questions

[Sidewinder]

Any allegation of Gross Misconduct would have to be specifically covered by terms in your contract (or a company handbook). Some behaviour such as theft, reporting for duty whilst drunk, fraudulent behaviour or endangering the health & safety of others will almost always be considered as Gross Misconduct (and could reasonably be expected to result in summary dismissal), but companies who consider less obvious examples of behaviour as being Gross Misconduct must notify this to employees.

 

If your actions were not deliberate and the questions were discovered during routine work, then why are you at fault and not the person who did not protect the document by a password? Was the document stored on a network drive to which you should not have had access, or was the author reckless enough to make it available to anybody with permission to use that directory? Was the document stored under a filename marked 'confidential' or could you be accused of deliberately accessing information which a reasonable person should have known not to? Presumably if you have been suspended, you have been advised of the precise reason?

 

I know that here we have a clause which forbids using any machine under the username of another person in order to access functions not avaiable in in one's own, but if you are required to do so as a part of your normal duties then I fail to see how this can be a serious disciplinary matter, even if your employer has such a clause.

[capt1964]

I had received an alert from the companies anti virus software and the documents were on a laptop under a file name of personnel. Does admiting that I have accessed them bear any wait

[Sidewinder]

Not neccessarily. Although not an expert by any stretch, assuming that a virus alert might involve checking firstly any recent documents on various machines which may have been harbouring the problem file, it might have been innocently opened and immediately closed once you realised that a) it was not the cause of the virus, and b)You realised that the contents were sensitive in nature. Although by definition, 'personnel' could be seen as a confidential document, it might also have

contained completely irrelevant data.

 

Did your responses at interview correspond exactly with those generic answers listed in the document which you saw. Would it have been obvious to the interviewer that you had used what you had learned to improve your chances of securing the new job? Would your responses have been different if you hadn't seen the document? Your problem is whether they are convinced that you only opened the document in order to gain an advantage, and whether you then proved this by repeating answers in such a way that they could only have been learned through inside information being obtained. Whether this would constitute an act of Gross Misconduct, is to me still questionable, for as stated earlier I would consider that such a sensitive document should have been better protected.

 

I think you need to learn the precise grounds for your suspension. Have you been notified of a date to return, or has a Disciplinary meeting been called? Any grounds will need to be covered by a term in the company's disciplinary rules.

[capt1964]

I now have a suspension letter. I have been suspended in with the Councils Disciplinary Procedure and the reason is to allow further investigations.it states that is not a disciplinary action and does not involve any pre judgement

[capt1964]

Whilst under suspension can an employer refuse to accept my resignation

[hanzo]

Whilst under suspension can an employer refuse to accept my resignation

No, but they could probably state in any reference that you resigned while disciplinary proceedings were pending.

[capt1964]

Thanks for the advice hanzo looks like I'll be going to the hearing and getting dismissed

[Sidewinder]

Thanks for the advice hanzo looks like I'll be going to the hearing and getting dismissed

 

Don't forget that they have to follow procedure, and if the worst happens you have a right of appeal. Let us know the outcome.

[dx100uk]

I had received an alert from the companies anti virus software and the documents were on a laptop under a file name of personnel. Does admiting that I have accessed them bear any wait

 

like you IT.

 

ok you should not of looked, unless the alert pointed you toward that folder.

however, if like my co. i will take a guess that they should not of been kept on the lappy anyhow if the estab has a network. this is also gross misconduct in our co! we have all read the news stories of recent.

you might want to investigate that you way! tit-for-tat.

 

dx100uk

[capt1964]

Thanks DX100uk I mentioned on one of my interogations that I was surprised that they were not password protected on one of our secure drives or in a folder named private, confidental or ***** eyes only but I did see the titles of the documents and it did state they were questions but I did not think they would open thought I would see the word password box. When they did open I took it that they were not the questions that were going to be used and they were questions that had been discarded

[dx100uk]

you indicate to there being network drives then there must be some written guidelines concerning security.

 

being that way inclined in my work shall we say.

i would find out who your data protection officer is and request a copy of the Co's policy concerning security. this he must comply with.

if it reads that such data should be secure or only held on securely protected drives then you have no case to answer, the files should not of been stored on the laptop.

that is how it is in most Co's.

 

pm me if you wish, i certainly have more info.

i would also contact the union, even if you are not a member, they may well be interested in the apparent breach of the data protection act.

 

nuff said

 

dx100uk

[prushton]

For an offence to be "gross misconduct" , it must have been intentional act ie you saw someones wallet and chose to take the money from that wallet or you chose not to tell the company you had received payment of monies to which you were not entitled and the company later discovered the overpayment.

 

You did not go looking for the interview questions, you stumbled across them on the laptop with a generic title " personell ", the files were not password protected which you would expect if they were of a sensitive nature. Once you discovered the nature of the files, you naturally closed them didnt you !!!!!!!!!!!!!

 

They would have to prove that you actively sought these files out knowing the contents, then having read them, you used them to gain an unfair advantage in the interview.

 

Your terms and conditions of employment will lay out specific acts that would be considered to be gross misconduct , these are usually theft , misappropriation of company funds etc, it will state something along the lines of " This list is not exhaustive " but as a rule Gross misconduct is a wilful or intentional act.

 

I am a shop steward with the T.G.W.U if I were you I would get your shop steward involved, if you have been suspended pending further investigation this should be with pay and you should have been told the duration of your suspension.

 

Use your suspention to contact your shop steward who can investigate on your behalf. Make sure that the company has followed proceedures as laid down in your terms and conditions of employment regarding disciplinary action, if not and you are dismissed and you decide to go to an employment tribunal for wrongful dismissal if the company has not followed the basic proceedures as laid down by ACAS for dismissal then the dismissal will be automaticlly ruled as unfair, and any compensation can be increased by 25%.

[prushton]

Taken from Personell today WEb site for HR Professionals

 

 

Companies should have a policy regarding what information should and shouldn’t be stored on laptops and other devices and communicate this clearly to staff. Many employees will be unaware that information is confidential or could be used to perpetrate a fraud against the company or individuals connected to it.

"Laptop hard drives should be encrypted so that data is protected if it is stolen or mislaid. This can equally apply to specific files that contain sensitive data stored on a server to prevent them being copied or read by unauthorised people. Companies can also prevent electronic data containing confidential information from being stored locally on an individuals’ PC or laptop, instead forcing them to be stored centrally - this, greatly reduces the threat if a computer were lost or stolen," advises Durant.

[capt1964]

Termination of contract by mutual consent has been mentioned what is this and how does it effect my rights thanks to you all for all the help so far

[Zamzara]

Don't agree to it: that is a trick to dismiss you and take away your rights but cloaking it in a positive sounding name.

[Sidewinder]

I agree. It means that they think that you have done something seriously wrong, but don't know what heading it comes under in the Disciplinary guidelines and would have a hell of a job proving it. In return for saving them the hassle of following procedure and having to take legal advice to establish a way of dismissing you, how would you like to walk away and we won't write anything nasty on a reference?

 

Problem is that you would be giving up your legal rights and would still have to explain to a potential employer why you walked out of a perfectly good job.

[capt1964]

I am now in the C**P the email alert that took me to the machine the other three receipients did not receive I have logged a call with the AV to see if this is possible. The email cannot be found on my machine through undelete of deleted items nor from undeleting from the exchange. Knowing the staff who would of carried out these actions I have to believe this. My defence now has to say I don't why they never got it and I don't know why its not in my deleted items on exchange. Because of two actions they could be related I dont know. I can however prove that if I wanted to access the files covertly I have got the skills and could remove all evidence that I was ever on the machine. I got asked six questions two of these I have already proved that I would know the as I have set the same questions in the past. I have to go and be re interviewed again this afternoon were I believe they are going to ask to explain how I was the only one who got the email and why is it not in my exchange account I do know that deleted items are not removed from our exchange for thirty days and if I was investigating I wouldn't believe my story now

[prushton]

What about data recovery software ? we all know that deleted items are not really deleted they are recoverable even when a hard drive has been formatted.

 

They still have to prove gross misconduct. As I said before gross misconduct is a wilful act , they would have to prove that you actively sought out this file that contained the interview questions, with the intent to gain an unfair advantage during the interview process.

 

I suspect that they asked you to consider mutual termination of employment because they had checked with Human Resourses and found they do not have a specific policy covering computer misuse / unauthorised file access.

 

If they have get your shop steward to geta copy , deos it :-

 

A/state what is acceptable / not acceptable computer use

 

 

B/Deos it set out the sanctions they are able to apply if you are found to be in contrevention?

 

C/ were you aware of any such policy beforehand ?

 

D/ did you sign to say you had read and understood the policy ?

 

The bigger issue is :-

 

A/ who informed them that you had accessed this file ?

 

B/ Who was responsible for the security of the file & why was it readily accessable.

 

C/ deos this person have a grudge against you or stand to gain from your demise?

 

 

These are all areas you should be looking at. If you have to go into an interview with your bosses is this part of the formal disciplinary process ? if yes take your shop steward with you , if you cannot take a shop steward with you , you are still entitled to take a representative in with you ( but only if this is a formal disciplinary interview.) DO NOT GO INTO AN INTERVIEW OF A FORMAL DISCIPLINARY NATURE WITHOUT REPRESENTATION.

[capt1964]

I informed them that I had accessed the file. I have not removed my footprint from the access of the file. Hence they could recover items from the file from the slack space on my PC. The point I was going to make is that in the past I have been involved in ten cases of computer forensic investigation. the tools they are using are the ones I brought into the Company. Misconduct would therefore be accessing the files without permission and Gross misconduct would be accessing the files covertly hiding my foot print and removing all tracks including slack space (Windows Washer) does this. Out of the ten none were dismissed these cases involved images of sexually explicit nature being discovered, copying MP3 files and general gaming. Because I did the forsenics I know what was on these previous cases. All are still employed in the company

[advisee]

Termination of contract by mutual consent has been mentioned what is this and how does it effect my rights thanks to you all for all the help so far

 

If there is a five figure payment to you, then go for it.

 

However this is not GROSS MISCONDUCT, it is possibly only MISCONDUCT.

 

That means that if they want to dismiss you you are still entitled to your notice etc, and to the right to claim unfair dismissal.

 

If they want to get you to leave, then ask them how much money they are prepared to offer.

[prushton]

Again this is not gross misconduct, as you say you did not take any active steps in concealing your access to this file, if you had you would be guilty of gross misconduct as you had taken steps to conceal the access and in doing so would have know it to be wrong.