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]

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]

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]

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

[Sidewinder]

Bear in mind that you are using a COMPANY machine and as such not your personal property.

Human rights have NO bearing on this.

 

Sorry Curly but I have to respectfully disagree. Tenuous as it may seem, the absence of a clearly defined policy (eg in the interests of protecting others or the Company) may result in a claim under Article 8. If the employer permits the use of company equipment for private use, then the employee has a reasonable expectation for such use to remain private unless the employer has a clear policy statement to the effect that useage will remain monitored for that particular purpose. Halford vs UK successfully argued that her employer's monitoring of private telephone calls on the employer's phone contravened Article 8.

 

ACAS cites the HRA as a major consideration for the Employer when establishing the requirement for a Computer Use Policy in the workplace. Although largely now covered by the Regulation of Investigatory Powers Act, employers may still only intercept communications lawfully in certain instances, and then only where all reasonable steps are taken to make users aware of the interception and reasons for doing so.

[Ell-enn]

That's my understanding of it too, but I'm happy to be corrected

[paulgmb]

In addition to the excellent advice provided above, the only thing I will add is that where gross misconduct has been alledged it is normal procedure for the employee to be suspended on full pay pending the outcome of an investigation.

 

Do you have any previous warnings on your file?

 

This does not sound like gross misconduct to me. Your employer sounds ignorant of most employment regulations or disciplinary procedures and the fact that he has no internet user policy in place suggests that he should either issue guidence for future use to all staff or merely warn you verbally about your own useage.

 

Stand your ground, don't resign before taking advice but be aware that there are certain exemptions for small companies in disciplinary guidelines where there are not enough managers to deal with different stages, but lets cross that bridge if we come to it.

 

Good luck!

[ReasonableRon]

For reasons already stated your employer appears to be stepping into dangerous waters here. A well structured defense should win the day - however if your employer is as disorganised as he appears then the hearing itself may well contravene established employment law - escpecially if it appears that the outcome was already pre-determined.

 

Check out ACAS for some very useful information.

[Barry031261]

Thank you all once again for some fantastic advice.

 

I can confirm that I have never had any warnings in the past from my employer, either verbally or written, and, up until it became clear that he was avoiding paying me for the additional work I had undertaken for him, our working relationship was harmonious and friendly.

My work has always been to the highest possible standards and even through the last few difficult months I have remained conscientious and diligent with respect to dealing with our clients and their requirements.

And although I have occasionally used the internet it has in no way impeded the workflow or impacted upon his business in any way. I feel sick to the stomach to think that at the end of every working day my employer has been jumping on my computer and searching for so called 'evidence' to use against me in this way in an effort to try to avoid his liabilities.

 

I am now looking at all the facts that have been posted here and I will shortly post what actions I think I should take at the next meeting.

 

I look forward to more constructive comments then

 

Thank you all for giving me hope when all looked like gloom and doom

 

Barry

[electron99]

One small point. If the client for the work you did at home has paid for it, and your employer cannot pay you the £1500 out of this income, then he has cash flow problems.It may be prudent to discretely keep a look out for another job.In the likely event of you winning any action against him, you may win compensation he can't afford, and possibly be without a job.

[crash3903]

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.

 

 

Having researched this a bit more regarding HRA

 

I am assuming that you are employed by a private company and not public sector ie Local Authority- I say this because article 8 I believe is only relevant to public authorities - So I would research it well before using it in any argument

 

I await clarification or case law from others

[advisee]

Crash - you are correct that European Law is only DIRECTLY applicable to public organisations - an enimation of the state. In this case, the european law is the European Convention on Human Rights.

 

However, we have a piece of UK legislation (drafted to put the EU law into our own domestic law) - this is the Human Rights Act 1998.

[crash3903]

Thanks Advisee - that has cleared that up for me - Researching the act is says

 

11 Safeguard for existing human rights

 

A person’s reliance on a Convention right does not restrict—

(a) any other right or freedom conferred on him by or under any law having effect in any part of the United Kingdom; or

(b) his right to make any claim or bring any proceedings which he could make or bring apart from sections 7 to 9.

Article 8 being right to privacy

 

 

Would be interested to see any case law or cases where this has been implemented

[prushton]

You may find the following helpful , its a guide to internet usage policies by a leading HR web site personnel today , they advise HR professionals in the law. if your company has no such policy regarding internet usage, or you were not aware of such a policy in force , how can you be guilty of gross misconduct for accessing the internet at work?. Gross misconduct is a wilful act , if you didnt know your company had a policy regarding internet usage ( you should have signed to say you are aware of this policy ) how could you be guilty of gross misconduct ?

 

If you took your employer to an industrial tribunal for wrongful dismissal because they sacked you for mis-using the internet I suspect the tribunal would rule in your favour, as they didnt have a specific policy in force regarding internet usage at work. Hope this helps

 

 

POLICY GUIDES

 

E-mail and internet usage

 

22 June 2006 00:00

 

 

 

 

Sue Nickson, international head of employment at Hammonds, offers advice on how to draft an email and internet policy

Aims of the policy

The principal aim of the policy is to ensure that employees are aware of the employer's rules governing the use of e-mail and the internet at work.

Who is it for?

The policy is usually aimed at employees, although it can be extended to cover contractors, agency workers and other individuals who have access to its e-mail and internet systems to ensure they are also aware of their rights and obligations when using the system.

Essential elements

The policy should:

E-mail

1. Inform employees of when, how and for what purposes they are allowed to use the employer's e-mail system. For example, are employees only allowed to use it for business purposes or is reasonable personal use also allowed? If the e-mail system is stated to be for business purposes only, then employers should ensure that this happens in practice. If they do not do this, and subsequently seek to dismiss an employee for personal use of the system, any such dismissal is likely to be unfair.
   If rumours of a Treasury proposal to treat personal use of e-mail/internet access as a taxable benefit are to be believed, this will become increasingly important. See comments below regarding restrictions on monitoring.
   
2. Make it clear that sending offensive, defamatory, discriminatory or otherwise inappropriate e-mails will not be tolerated. The policy should make it clear that such behaviour would amount to misconduct and may result in dismissal.
   
3. Ensure that employees are aware of the problems that may arise if they misuse the e-mail system. They should be informed that the laws governing disclosure, defamation, breach of copyright, licensing restrictions etc apply as much to e-mails as to other written communications.
   
4. Ensure that employees are aware of the extent to which e-mails should be in a certain format, for example, with a disclaimer statement and with certain employer information included.
   
5. Remind staff that the e-mail is not a substitute for conversation and that it may create disclosable documents in any litigation.

Internet

1. Ensure employees are aware of who can use the internet and when, how and for what purposes. The policy should make it clear whether employees are allowed to use the internet for personal and business use or just for business use.
   
2. Set out any restrictions on accessing particular sites - the policy may provide, for example, that employees should only download files to their PCs if they have virus-checking software installed. While the internet gives employees access to a vast amount of information they need to be aware of the risks involved in downloading and using such information.
   Make it clear that downloading or forwarding offensive, obscene or indecent material from the internet is forbidden and that a breach of the policy will result in disciplinary action, potentially including dismissal.
   
3. Set out any restrictions on the time that can be spent using the internet. For example, if employees are only allowed to use the internet for personal use during lunch hours or before or after work this should be made clear.

Monitoring

Ensure that employees are aware of the extent to which their employer will be monitoring their use of the internet and e-mail system. An employer must properly consider the impact of the Data Protection Act 1998 and the Regulation of Investigatory Powers Act 2002 before undertaking any form of monitoring. The Information Commissioner recommends that employers carry out an impact assessment to help them establish whether their internet and e-mail monitoring complies with the Data Protection Act 1998.

Security

1. Set out clearly any rules governing the use and disclosure of passwords, accessing the system from home etc. Employees should be told that they are responsible for the security of their computer and that they should not allow it to be used by an unauthorised person.
   
2. Ensure that employees are aware of the problems that may arise if they misuse the e-mail or internet system.

An employer should cross-reference this policy with other relevant policies such as the equal opportunities policy, the disciplinary and grievance policy, and any data protection policy to ensure that a consistent approach is taken throughout.

An employer should consider whether the policy will be contractual or non-contractual. An e-mail and internet policy will normally be non-contractual, as this increases the amount of flexibility the employer has to make changes to it in line with law or good practice.

Key legislation

Data Protection Act 1998

Regulation of Investigatory Powers Act 2000

Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000

Human Rights Act 1998

Useful links

The Information Commissioner's Office

This guide is for general guidance only and should not be relied upon without advice on your specific circumstances.

 

 

www.PersonnelToday.com

 

Friday, 01 February 2008

[casiopaea]

It has been some time since the last post but I believe you can still help me.

 

My case is similar to Barry's.

I was on probationary period with the company when they terminated my contract of employment based on excessive use of internet. But it was not gross misconduct.

The company has a policy regarding internet and email usage. And I have been informed that little usage for personal purposes it is ok, but better if done during lunch breaks.

I took over a job from a lady who retired last month and was working on a part time basis. I was employed full time. That means sometimes I did not have enough work to do. But all my duties were always up to date.

At the end of April (it was Friday) I had a meeting with one of the directors. He said he knew I was using internet at work, that meant for him I was not busy enough and he wanted me to stop using internet and he wanted to find some more tasks for me to do. I agreed with him admitting using the net occasionally and said I would be grateful for some more work to do. It was not a verbal warning or disciplinary hearing but for my own purposes I treated it like it was a verbal warning. Since that conversation I have not opened a single web page. But despite this following Tuesday my contract was terminated and I was ask to leave premises asap. I was also told that it was not a case of internet usage- I just did not "fit in the company".

Unfortunately I cannot claim for unfair dismissal as I was employed there for 6 weeks only, but company gave me only 6 days notice (instead of a week), I have never been issued a copy of a contract of employment), company did not follow 3 step DDP, I have never a had a chance to improve my performance regarding internet use as they dismissed me after 3 days. As far as I remember there was information regarding monitoring the usage of the internet and email. And all other employees were using emails, internet and telephones for personal use (the lady I replaced was even using dating websites at work). What is more- all PC have the same password and there were occasions where other people were using my PC during the day.

I believe I can take civil actions for unfair dismissal based on information above (no DDP, too short notice, no chance to improve)?

Can I claim unfar dismissal based on a fact, that the true reason for my dismissal was I did not fit in the company (I am not sure what they wanted to say by that, but I was the only non-British person in that company).

 

I would apprieciate any comments!!!