Gross misconduct if not Criminal actions from Superior - Advice needed pls

[leilani]

Hi,
Hope you can help. I am asking for help with something that so far is being swept under the rug by my sons former (few weeks) employer.

My son had been working as a security officer for just under a year, in a control room for a local shopping centre. Few months back, problems started to arise within the hierachy of the security firm contracted. Managers leaving or employment terminated, new acting managers etc.

This didn't affect my lad, until sometime in June when the new acting manager, started to impose restrictions, of which had been previously allowed by previous managers. No proceedures & policies for employment had been signed, nonetheless, my lad was happy to compromise.

Still this was not enough, and the then acting manager, set out to get my son out, by raising other issues, to the point the contracting security firm told him the client didn't want him on site, suggesting gross misconduct. He was not informed for days as to what he had done, (he called various people with no return calls) and when finally informed by email nearly 4 days later, with a list of things raised and an investigation meeting to be held a few days later with the acting manager. My lad felt there was a conflict of interest because the alligations involved the acting manager. After a month with full pay, a 3 hour investigation meeting was held and a few days after my son was invited back to work. No grievence charges, no dismissal etc. However, the then acting manager became manager. 

Keeping his head down, but listening to the woes of others, in particular of one of his collegues, who was suffering a lot of back lash from this manager, claiming his physical & mental health was getting so bad as a result, but also claiming that the manager was claiming things about certain people he was responsible to with the "Client" i.e. the shopping centre.  My lad, recorded the conversation for his own recollection between themselves. He had no intention of using it for anything neferious, just purely, so he didn't get anything wrong if asked. He sent the audio to his personal email address from his mobile. Never accessed it from the work computer.

Literally, a few days back on duty. He was rung and told he was under investigation again. This time he was told for trying to blackmail this manager, by sending him this recording. He had not! Whilst still on duty I told him to check the cache for any data pertaining to this, and he did, and he found that his personal email address had been logged into during a day shift (he worked nights), on a day he wasn't working, he also found that not only this, but other emails within his personal email account all pertaining to his employment had been viewed, and that the said email containing the audio file, had been sent to the manager (it then must have been deleted within sent open looking at email account so he didn't see it).  Looking at the logs, the person in the control room at the time, covering the controller was the manager.  My lad screen shotted everything, photographed everything as well, left the file of screen shots on computer in a safe place for the client or police, because he knew that the cache records could be erased once told about, and that the CCTV (they are always watched) would soon erase itself. He raised it with the area managers, told them he had proof, and was going to report it to the police.

In between, my son started suffering with vision problems, it actually started few months before, but got worse with all the stress he was under, he didn't know what was happening, until one morning he woke up blind for a few seconds in one eye. He took the day off to go to hospital. He was suffering from inflamed optic nerves, which left untreated can make you go blind, so he had a lot on his plate. Upon his return to work, he was called into the office with the deputy manager to fill out forms for his day off. My lad was wary from the beginning as it seemed a bit unusual, and then the manager came in and started talking in a derogatory way about my lad to the deputy manager, of things he had accused him of during the first investigation, of which he ponted out he wasn't reprimanded in anyway.  I understand there was some back and forth dialogue, but no swear words or anything like this, but son was so angry by this humiliation, he up'd and left, on the spot and didn't finish his shift. Couldn't take anymore, wrote letter of resignation that night. 

He did inform the police, he went through the process accessible to him, and even rang the next morning to clarify as the online system of reporting didn't allow him to specify everything.

Few days later, he was later contacted by the area manager and asked if he really did want to resign, and he said, yes. He was told he wouldn't know the outcome of the new investigation. Fair enough but hoped that one of his ex collegues would tell him.

The crux of this, the police this morinng rang him to tell him they are not going to persue it, because "it's not in the public interest". He was told it was his fault for leaving his email logged in, which he had not, and said to the officer you are making a presumption there, and have you actually obtained the CCTV in that time, or actually done any investigation, and his response was it's a civil matter and no he hadn't. He also told him, because he had left before the investigation as he knew he would be sacked?? What? That's not the reason he left. Another presumption? He feels he's been royally stitched up, harrassed, ignored and with no address leading to accountability.

My son is very poorly suffering with IIH, lots of medical procedures, appointments with specialist and cannot work at the moment, he has no savings, and huge rent to pay, he has applied for benefits until he's well enough to secure another job. That's stressful enough, and one might say let it go, but this on top, just makes him feel totally incapacitated and without hope.  I just would like to be able to find out if there is anything he else he should be doing against his former employers, and especially this manager who entered his personal email account, sent a file from it, in order to make out he was being blackmailed to himself, or a complaint to police for not investigating this. Surely if someone with either a keylogger or CCTV footage in the workplace, goes into your private email address its our equivilant of GDPR breach? How did he know about the audio in the first place? A listening device? surely there must be some wrong doing, negligence or malpractice in the work place?

Would appreciate any advice and suggestions. TX in advance.

[whitelist]

From what you have said, the employer has followed proper procedure with a formal disciplinary following a fact finding interview.

 

The issue at hand is if you can show any allegations against your employer investigated following an official grievance by yourself? Things such as accessing email account, derogatory comments, and so forth Without this, as a cause of action will be an uphill struggle and unsubstantiated allegations sorry to say.

 

As we are not talking about a protected right, the period for an employment tribunal still be a three months from termination of contract. That will be constructive dismissal as he resigned, but only about 5% of claims are successful. And it appears the employer has followed the correct procedure.

 

Wait for more comments though as just my personal assessment of the situation

Edited September 21, 2022 by whitelist

[leilani]

Hi Whitelist,
Thank you for replying.

So it does look like he may have been constructively targetted for either dismissal/leave by his own volition.

Yes, he can provide proof of the events, including a transcript from the first investigation (20 pgs long!). Nonetheless, he doesn't have support from police to confirm his evidence, which will no longer exist. 

Instigating a tribunal may well be quite arduous at this time. As you say, might not even be worth it.

As the police officer suggested it was "Civil" maybe, someone could tell me if a legal route is possible?

 

[whitelist]

What redress is he seeking for loss or employment?

[Ethel Street]

As well as the 3 month deadline for submitting an Employment Tribunal claim the other legal obstacle is that you have to have been employed with that employer for 2 years before you can bring an unfair/constructive dismissal claim at an Employment Tribunal. Looks like your son was employed for less than 2 years so isn't eligible to bring an unfair/constructive dismissal claim

[leilani]

@Whitelist to be honest, I don't know, as he didn't know what his options were. I guess there are none.

I think he wants the manager to take accountability for what he has done to him over the past few months, and especially the invasion of his privacy and trying to set him up for something he would never have done. I don't believe it was the contracting company, or client targetting him for dismissal, but the manager solely.

I guess, as @Ethel Street has said, he's worked under 2 years. Seems so wrong

Thanks for you help, I don't think there is anything that can be done.

Edited September 22, 2022 by leilani

[leilani]

Just to be clear, my lad was NOT dismissed, he was set up by his manager, which "may" have resulted in dismissal.

We won't ever know if this second investigation, would have resulted in dismissal, as he did have evidence to the criminal actions of the manager -

 

The manager certainly threw everything he could to try and achieve whatever agenda he has, by targeting him, harassing him and trying to frame him for blackmail being the penultimate,

 

my lad couldn't take it any more, so resigned. I am glad he did, he's going through a lot, and quite honestly, doesn't need to be tarnished by something he hasn't done. Just hoped this individual gets the justice he deserves, as my lad is not the only one he's targetting, just first out the door.

 

[Emmzzi]

Hello,

 

I cannot see what criminal actions the manager took - what am I missing?

 

Thanks.

[leilani]

He went into my son's personal email account (gmail) on a day my son was not working (whilst covering a lunch period for someone else) using the work computer, snooped around my son's personal email, and sent himself an audio file that my son had sent to himself.

 

The manager covered his tracks by removing the sent file from sent folder, so he would not notice, then claimed my son had sent it to him (the manager) in order to blackmail him.

 

My son was not logged in to his personal email address on that computer that day (they sometimes did, if transferring information from their phone if an incident had to be logged and burnt on to disk),

 

the manager had either used a keylogger or observed him logging in to gain his password.

 

Plus the previous allegations, which my son won against to get my son dismissed.

 

Would you consider this as acceptable?

[dx100uk]

what is criminal about that?

 

the pc belongs to the company...

 

dx

 

[Ethel Street]

@leilani

 

My understanding is that if you can prove what you describe in Post #9 is what happened then the manager would likely have committed an offence under the Computer Misuse Act.

 

But the problem for your son is how is he going to prove this? What evidence is there that the chain of events you describe actually happened? Is there CCTV of the manager doing it? Was he observed by witnesses willing to make a statement? 

 

Has he reported the unauthorised access to his gmail account to the police? (Unauthorised access to computer material, s1, Computer Misuse Act 1990)

[leilani]

The email account address isn't! Would you be okay with someone accessing your personal email account and set you up for something you didn't do?

[honeybee13]

I wouldn't use my personal email on a work computer, Leilani. I'd keep it on my phone.

 

HB

[Emmzzi]

There’s a question around what you think happened and what you can prove happened.

[leilani]

1 hour ago, Ethel Street said:

@leilani

 

My understanding is that if you can prove what you describe in Post #9 is what happened then the manager would likely have committed an offence under the Computer Misuse Act.

 

But the problem for your son is how is he going to prove this? What evidence is there that the chain of events you describe actually happened? Is there CCTV of the manager doing it? Was he observed by witnesses willing to make a statement? 

 

Has he reported the unauthorised access to his gmail account to the police? (Unauthorised access to computer material, s1, Computer Misuse Act 1990)

Yes, he could prove it, he found the evidence of emails opened and time stamps in the cache. The written logs told him who it was in the room. He screen shotted and took photos on his phone also. The screen shots were placed on the work computer of which he would tell them where when investigation began. The police were contacted, and he made his statement. The police officer later came back and told him he had not investigated as deemed a civil matter, therefore the CCTV which would have shown who it was at the desk at the time, had no doubt been erased, as it's set to erase every few weeks. 

To be honest, I am pulling my son away from this conflict, as it appears to be no way for recourse, a bad chapter in his working career, and to move on. 

The company hasn't even finalised his resignation, still waiting for holiday pay etc, nor asked for their uniform/entry fob back (which would have been deactivated). He will use this to actually open dialogue upon returning it.

Thank you for giving me some pointers though

[dx100uk]

22 minutes ago, leilani said:

The email account address isn't!  Would you be okay with someone accessing your personal email account and set you up for something you didn't do?

 

having worked in data and pc's, directly involving such matters for over 30yrs, i can tell you quite candidly that you will get nowhere upon the above 'outrage'. 

 

the machine he used is the property of the business, and information placed upon it like email portals even to the personal information accessible from such is their property too. the contract he signed will specifically cover such i'm afraid. 

 

now if the boss cracked into his email, and not simply accessed it because, as pc's do, they can be selected to remember passwords etc, is a totally different matter. that you could get the boss on.

 

the audio file appears to have been originally transfered from sons phone to work pc to email acount, that data was on the business pc, so cannot be deemed pers data. sorry

[Ethel Street]

So sounds like police don't think there's sufficient evidence of a crime being committed or they could have started an investigation under s1 of the Computer Misuse Act.

[leilani]

27 minutes ago, honeybee13 said:

I wouldn't use my personal email on a work computer, Leilani. I'd keep it on my phone.

 

HB

I agree but that was their protocol, if evidence of something was needed to be recorded they would use their own phone camera/film and email to download it to the works computer. 

[leilani]

2 minutes ago, dx100uk said:

 

now if the boss cracked into his email, and not simply accessed it because, as pc's do, they can be selected to remember passwords etc, is a totally different matter. that you could get the boss on.

 

the audio file appears to have been originally transfered from sons phone to work pc to email acount, that data was on the business pc, so cannot be deemed pers data. sorry

Whilst I appreciate that pcs can be selected to remember passwords, it's not my son's first rodeo so to speak, he very pc literate. He knows never to save passwords on others if accessing. He also didn't email this to the works pc, it was in his personal Gmail account, of which was accessed from the works pc on a day he was not in. That is not to say that the manager couldn't have looked at the CCTV footage of which is on them all the time, and seen him type his password in.

As for contract, not sure if that is in his employment contract, I understand there are company policies and procedures that have to be signed, my son was never given it, and so never signed it. I know this because the first investigation, one of the gripes was that he was on his laptop, which his previous manager had given him express permission to do, as being 12 hours in a small room with no one else without the ability to leave and have proper breaks, was like torture. But the then acting manager/now manager said he couldn't do anything about it because he hadn't signed it. I understand they still hadn't afterwards but my son compromised with them on that anyway, he didn't want to upset the client. (By the way having a source of entertainment is standard in other organisations, even the BOE of which my son worked for nearly 4 years).

Anyway, it's a hopeless case, because as you say, there is always something they can claim. But thanks for your input.

[leilani]

43 minutes ago, Ethel Street said:

So sounds like police don't think there's sufficient evidence of a crime being committed or they could have started an investigation ubder s1 of the Computer Misuse Act.

No, I just think they couldn't be arsed with a small thing like this. Bigger fish to fry and all that...

[dx100uk]

On 21/09/2022 at 14:26, leilani said:

He sent the audio to his personal email address from his mobile. Never accessed it from the work computer.

 

having carefully read post 1 again,...... from what i said earlier , you will see my description of the outline of the data law,-  if the above statement is true, then you do have a case. 

 

as long your son never accessed the said email from his works pc, then the audio file cannot have existed on the works pc as an attachment. it's that, the actual data file, that's the important thing here.

 

sorry for the confusion.

not what if anything you want to do about is another matter. however, for the boss or sub manager of a security firm!! it will be extremely embarrassing for him to realise he broke gdpr and data laws that existed well before GDPR ever existed. has the boss a senior or a CEO? pers id be writing them a letter.

 

 

[stu007]

Hi

 

I have to agree with dx100uk on this as this is Security dealing with CCTV as well you must also remember that everything that is done on those computers etc is all stored on the companies Servers which that companies IT Team will have full access to and can see everything that is been done by those employees due to everything being stored on those Servers.

 

Also as this is security that company will also be signed up to RIPA or should be which and I am surprised that the company if they are aware of this has either turned a blind eye  or not investigated this matter properly as mentioned it will all be stored on there Servers.

 

It's the Company that he is Employed with that needs to investigate this matter and if Criminal Actions have been carried out then it is for them to refer this matter to the Police. (that is why the Police are not getting involved if it is that serious)

 

RIPA

 

Regulation of Investigatory Powers Act 2000

WWW.LEGISLATION.GOV.UK

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An Act to make provision for and about the interception of communications, the acquisition and disclosure of data relating to communications, the...

 

/assets/static/govuk-opengraph-image-dade2dad5775023b0568381c4c074b86318194edb36d3d68df721eea7deeac4b.png

RIPA codes - GOV.UK

WWW.GOV.UK

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This series brings together all documents relating to the RIPA codes.

 

[leilani]

Thank you dx100uk & Stu007

I truly appreciate your knowledge and time to tell me it.

It might help if there is a way of convincing the employers to take steps, which is a possibility, but I am not going to hold my breath on that on one. At least I can tell my son that the police needed the company to do it, which should really have been explained to him by the police man. He may feel less resentful of the system.