sacked for gross misconduct

[mariefab]

I don't understand the techy aspect of this but:

 

In order to have reasonable grounds to sack you for sending confidential attachments in an email to your daughter on 12/2, surely they need to produce this email as their only evidence.

In it's absence they have no grounds for dismissal.

 

If the IT problems they're experiencing haven't prevented them from producing every other email to your daughter why can't they produce the 12/2 one?

[madisnanny]

Exactly my point!!

 

They have made a very big mistake in sacking me.

[Tezcatlipoca]

ACAS will surely ask for hard evidence wont they?

 

I will correct this statement: ACAS will demand hard evidence from your employer, who if unable to provide it, is likely to find themselves in a lot of hot water. Employment tribunals for wrongful dismissal can be very, very expensive for a company...

 

IT, rather than employment law, is my particular area of expertise, but from what I can see it boils down to the simple fact that the IT department either can't or won't (could be either, but I suspect the former) produce hard evidence to either support or oppose the reasons given for the dismissal. All they have done is printed out a list of emails, one of which was private.

From what I understand, Management have assumed this means you have sent all the emails to your sister, but supposition is not a good enough reason to dismiss an employee.

You have stated you did not send them, and without hard evidence the dismissal has no grounds and your sacking constitutes wrongful dismissal.

 

It would help if you were in a union (assuming you have the facility to at your workplace), but regardless ACAS can and will fight on your behalf, and in my experience most employers back down very quickly at the first whiff of an employment tribunal with ACAS involved.

 

Again, other people in this forum will be in more of an expert position than I to advise on the employment law and dealing with ACAS bit, but I would personally advocate you call them as soon as possible and give them all the details. They exist precisely to protect your rights.

I would also request a copy of your employment contract and the company employee handbook from your old workplace, as well a copy of the printout IT made of the email to your sister of 12/02 (and if they refuse, ask them to confirm that refusal by writing/email). This not only allows you (and ACAS) to look at the exact details, but sends the company a clear message that you are taking the matter seriously and that your dismissal is going to be examined by the proper authorities.

 

Hope this helps.

Edited May 27, 2010 by Tezcatlipoca

[cardiffboy500]

This point has been touched on previously, but the only way I can see that sending an email to your daughter would lead to a dismissal was if it contained anything confidential or sensitive in it.

 

If it is like the emails that I exchange with family during working hours, it probably just contains general chit-chat about the weather, the cats, what you had for dinner etc etc and therefore poses no risk to your company.

 

They may, however, have grounds for a disciplinary based around their internet/email policies? If the staff handbook or an IT policy that you have signed states that email/internet access cannot be used for personal use, then yes, you have broken the rules, but at the most a warning would suffice for a first offence of this nature.

 

So, unless you sent your daughter some company secrets, they appear to have been exceptionally heavy handed here!!

 

CB500

[madisnanny]

Hello yes we did send emails about family,dinner etc to which I admitted and apologised the very 1st time they spoke to me about this and pointed out that others done this who had been with the company longer so I thought it was allowed...This has stemmed from my GM refusing to speak to me since last Oct and he saw this as a way of getting rid of me. He told my husband that we were having an affair!! Thankfully my husband is a very cool man otherwise things could have been very different? GM has made my life hell since October.

[honeybee13]

Hi there. So you seem to be agreeing with cardiff boy about the type of emails. Were they very long ones? I think we're talking about 100 or so? How many would that be a day?

 

Frankly, if they applied that to any office I've worked in, they wouldn't have any staff! My OH may not ring me during the day like he used to [and that was only ever for a minute or two], but I usually get a couple of one or 2 line emails a day.

 

But now we're seeing this man in his true colours, it seems. I don't think I'd picked that up before. Sorry to be thick, is October the start of the emails thing or something else.

 

We're with you.

 

HB x

[madisnanny]

The 100 page email that they think I sent to my daughter contained lots of emails to and from members of staff,there was only 1 that was sent to my daughter! This was sent to my team leader on 03/03 but the last email sent to my daughter was on 02/03 as IT have printed off a list of all outgoing emails to my daughter, I think this speaks for itself?

Hopefully I will receive a letter regarding my appeal very soon as it has now been 1 week since the meeting and will keep you all updated.

 

Thanks

x

[madisnanny]

Hello, forgot to mention that statements made by my former work mates have actually all been written by my Manager and only signed by them...will this be something that will go in my favour when i contact ACAS/Solicitor?

Edited May 28, 2010 by madisnanny

[honeybee13]

Hi again. Can you prove to a third party that they only signed them and didn't write them, rather just having been told that?

 

HB x

[madisnanny]

Yes i proved to the manager at appeal that my manager wrote them all.

[honeybee13]

Wow! You bet it should help with ACAS etc.

 

But the guy doing your appeal didn't care? Weird.

 

HB x

[madisnanny]

All he said was that he would need to speak with the manager that had wrote the statements.

[madisnanny]

Hello all, I have just came back from a lovely weekend away and have a job offer!! At interview I did not tell them of the impending tribunal, only that I had suffered badly with my bosses treatment to me and had left. Do I tell them that I am taking legal action against my former boss as I was sacked,or do I keep my mouth shut?

[locutus]

Hello all, I have just came back from a lovely weekend away and have a job offer!! At interview I did not tell them of the impending tribunal, only that I had suffered badly with my bosses treatment to me and had left. Do I tell them that I am taking legal action against my former boss as I was sacked,or do I keep my mouth shut?

Bumping this question and congrats on the job offer! I have no idea, my gut feeling is to keep your mouth shut.

[madisnanny]

Hello all, I have now heard that my sacking has been upheld following a appeal hearing on the basis of balance of probabilities. 'On balance you did commit the alleged misconduct and that the action taken was appropriate'. How can he still say that i sent this email to my daughter on 15/02 with attachments that I did not receive until after this date?? All of this is clear and on paper with dates etc and is an IT problem. Do you agree that this is unfair dismissal and I will possibly win at a tribunal?

[honeybee13]

Hi there. I'm sorry this is the decision. I sided with you at the outset and I still think they aren't doing it right.

 

I think Tezcatlipoca probably said most of what needed to be said a few posts ago.

 

I'd have said you probably stand a good chance at a tribunal, but hopefully the others will comment too.

 

My best, HB

[madisnanny]

Hi all. Update so far...having looked at this email again and again that I apparently forwarded, I have now discovered that these 'attached emails' that supposedly I sent on 12/02 to my daughter did not exist on this date as they were either sent or received to me on various dates after the 12/02...proving that I could not have attached to the email sent on 12/02 as I stated. I have now received letter from Employment Tribunal accepting my claim for unfair dismissal. My questions now are:

 

Will the tribunal look at my evidence and see that I could not possibly have time travelled and try to resolve this?

 

Will the company back down and admit to sacking me on the balance of probability when they know they are clearly in the wrong?

This had made me ill knowing all along that I was innocent and ex workmates will still not speak to me although I was close to 2 of them...been told not to by my boss I believe.

[honeybee13]

Well I'd have thought so, in a fair world. You have a paper trail now, I imagine?

 

Would it be worth putting that part of your post on the IT forum to see what they can tell you about 'time travel'?

 

Hopefully people here will comment on how an ET might deal with it.

 

HB x

[cardiffboy500]

Hi all. Update so far...having looked at this email again and again that I apparently forwarded, I have now discovered that these 'attached emails' that supposedly I sent on 12/02 to my daughter did not exist on this date as they were either sent or received to me on various dates after the 12/02...proving that I could not have attached to the email sent on 12/02 as I stated. I have now received letter from Employment Tribunal accepting my claim for unfair dismissal. My questions now are:

 

Will the tribunal look at my evidence and see that I could not possibly have time travelled and try to resolve this?

 

Will the company back down and admit to sacking me on the balance of probability when they know they are clearly in the wrong?

This had made me ill knowing all along that I was innocent and ex workmates will still not speak to me although I was close to 2 of them...been told not to by my boss I believe.

 

I am struggling to understand how you have ended up in this situation. Emails are so easy to trace - they have an electronic trail, showing what happened and when. If it was a case of alleged document copying and passing on, that would be much harder to prove or deny.

 

Is it worth trying to find an independent "expert" who can analyse the email and attachments and determine the exact details?

 

Good Luck!!

 

CB500

[madisnanny]

Thanks guys for your help. I have shown this email to a computer programmer who says he will stand in court and confirm that this could not have been sent on 12/02. At appeal I said that all they had to do was go to my pc and look at what was sent to my daughter on 12/02 as this is all the proof that was needed. I guess he didn't do this as he upheld the decision on balance of probabilty.

[honeybee13]

Playing devil's advocate, if backing down meant offering you your job back, how would you feel?

 

Did you start the new job you told us about?

 

HB x

[madisnanny]

I could not possibly work for the same boss...he has caused me too much pain and made others lie as they feel that telling the truth would be career suicide. The other job didn't work out as I was not prepared to work 16hr days so got shouted at. Working nights now for a great company so hopefull i will be there a while yet.

[madisnanny]

On another thread there was something about a schedule of loss, what exactly should i put on that if i have to do one for the Tribunal?

[cardiffboy500]

On another thread there was something about a schedule of loss, what exactly should i put on that if i have to do one for the Tribunal?

 

Probably jumping the gun a little here, it will be months before you get to that stage. I started my ET in April and we have our first Pre Hearing Review tomorrow. So I wouldn't worry about that yet.

 

CB500

[Bigredbus]

Hi,

 

The schedule of loss is part of the compensatory award and should be limited to financial or economic loss...

 

 

The principal heads of compensation were identified by the National Industrial Relations Court (NIRC) in Norton Tool Co Ltd v Tewson [1973] 1 All ER 183...

1. immediate loss of earnings, ie the loss of earnings between the date of dismissal and the date of the hearing;
   
2. future loss of earnings, ie anticipated loss of earnings in the period following the hearing;
   
3. loss arising from the manner of dismissal; and
   
4. loss of statutory rights.
   

Compensation may also be claimed for loss of pensions... Further more, by ERA 1996, s123(2) loss is also taken to include (a) any loss reasonably incurred by the compalinant in consequence of the dismissal, and (b) loss of any benefit which the complainant might reasonably be expected to have had but for the dismissal.

(Although you just started pursuing your case legally, it is a good thing to get information about the schedule and start working on it at an early stage...)