Potential disciplinary near end of notice period

[misterc]

I work for one of the big 4 accountancy firms and resigned to join a competitor on 15 June this year. I am on a 13 week notice period and it was mutually agreed that I could leave on 9 September. Last Wednesday I was suspended on full pay following an allegation that I had downloaded a large volume of confidential data (client and firm data) and the firm is now conducting an investigation which will involve, amongst other things, the Forensic IT team coming to my house on Wednesday to scan my home PC for the files that I am believed to have taken, email accounts to verify that I have not sent them to a third party and then to delete the files to their satisfaction. I have told them that the reason for the download was to back up files as a precaution when I believed that my work laptop was about to fail. This happened a) before I resigned and b) before I even had an offer from my new employer.

 

I am confident that none of this has been sent anywhere and I am really not bothered about the data at all - they are welcome to that. What concerns me most is that this may be followed by a disciplinary hearing and dismissal for gross misconduct. What I am hoping for is to be able to delay any disciplinary hearing beyond 9 September as I know that they can't sack me after I've left.

 

I want to use any legitimate means possible to achieve this. I am helped by having w/c 15/8 and w/c 22/8 booked as holiday and can't be contacted during that time. Realistically they will not complete the investigation this week so that leaves w/c 29/8 and w/c 5/9 (9 working days) for them to get me to a disciplinary hearing. I have thought of the following:

 

Sickness - I am able under the firm's policy to self certify myself sick for 1 week. I understand that they should re-arrange once if I am off sick.

Companion - If my chosen companion for the hearing is unavailable they have to rearrange if they are available within 5 working days. I suspect that she is on holiday during w/c 5/9.

Extended holiday - is there anything to stop me extending my holiday or shifting it to eat into more of the time at the end of the notice period? This would be easy to do as it not something that has been booked.

 

Any other suggestions? Given that I am going to a competitor I'm not convinced that they will be willing to believe my reason for taking the backup in the first place. Thanks.

[Sidewinder]

Have you actually done anything wrong? Would you normally be permitted to back up data from a company machine onto your personal computer? How are the company aware that you have done this?

 

Your problem may well be that if you are found to, or have already admitted to doing something which could amount to Gross Misconduct, you could be suspended as soon as this is confirmed on Wednesday. Certainly it may be difficult to conclude any disciplinary process before your employment ends, but the employer would (providing that they are careful in how they word it) be able to state that at the time of leaving you were subject to disciplinary proceedings, which might have an effect on future job prospects.

 

I want to use any legitimate means possible to achieve this. I am helped by having w/c 15/8 and w/c 22/8 booked as holiday and can't be contacted during that time. Realistically they will not complete the investigation this week so that leaves w/c 29/8 and w/c 5/9 (9 working days) for them to get me to a disciplinary hearing. I have thought of the following:

 

Sickness - I am able under the firm's policy to self certify myself sick for 1 week. I understand that they should re-arrange once if I am off sick.

Companion - If my chosen companion for the hearing is unavailable they have to rearrange if they are available within 5 working days. I suspect that she is on holiday during w/c 5/9.

Extended holiday - is there anything to stop me extending my holiday or shifting it to eat into more of the time at the end of the notice period? This would be easy to do as it not something that has been booked.

Yes - but holiday booking will always be subject to agreement by the employer and I suspect that in the light of the circumstances, any such request would be refused.

[/Quote]

 

Are you in a Union?

[misterc]

The IT policy states that we are allowed to use only hardware that they provide for storing confidential data. They know that I have done this because they install software onto work laptops called Sanctuary. This logs and reports on any files that are saved from the laptop onto removable storage media like a USB memory stick. I have already been suspended on full pay pending the investigation on suspicion of gross misconduct. Given that breach of the IT policy is more commonplace, indeed, I have already stated for the record that I am aware of other employees that routinely back data up onto an external hard drive without this happening to them there is a chance that I may be OK as it increases the risk for them of a claim of unfair dismissal. I suspect that dismissal would be a racing certainty if I had sent any of this stuff elsewhere, which I haven't.

 

I'm unsure whether or not I ought to ride the storm in the belief that common sense will prevail in the end. My hunch is that common sense has been thrown out of the window and that they will look to dismiss under any circumstances. This was the impression that I got from a solicitor yesterday.

 

Your point on holiday is a fair one made also by the solicitor. However, we tend to take holiday "on trust" in our profession. As long as we get the job done we are free to take holiday when we like. I have accepted the fact that this may be something that I have to explain in the future. Fortunately I have already been provided with a clean reference for my new job. I also told my new employer what was going on and they have told me not to worry. For the time being, nothing has been proven, I haven't been dismissed and I want to keep it that way!

[misterc]

I'm not in a union by the way.

[geoff1248]

What would happen if you refused the Forensic IT team entry to your house?

[flowerchild]

Back in 2003 I was sacked for Gross Misconduct by one of those lovely, warm Investment Banks in the City. I am a graphic designer and was working in the Presentations department so had nothing to do with finance or clients. I was accused of posting 'confidential information' online and sharing it with a Citi employee as well as 'stealing' intellectual property. In reality I was doing a few websites on the side with a personal friend who had a stint of temp work at my bank in 2001, he got fired and went to work at Citi and we emailed each other often. Had to use the work email as those banks blocked all webmail like hotmail, etc. I posted some of my design work on a website to use as an online portfolio and there was nothing confidential as I mostly designed presentation covers which were very visual and contained only a line of text and were often headed something like 'Project Phoenix'. Also most of the work online was a 2-3 years old therefore no longer confidential!

 

I was suspended 'pending an investigation', which didn't take as long as you estimate, in fact MadCow (my nickname for the woman who orchestrated the whole thing even before this happened) went to work on Sunday and spent all day in her little cubbyhole snooping around my personal drive and emails, looking for 'evidence'. The following Tuesday I received a call saying they would be sending a cab to my home to pick me up so I could bring my PC and laptop to the bank's premises for inspection. I was a long-distance commuter and the trip to the city took over two hours and cost nearly £200. The trip back cost even more due to heavy traffic and the driver passing the village where I lived while I was on my mobile. I had just a couple of hours notice before the cab arrived but I didn't waste any time, I copied all my data to my external HD and got a screwdriver and took out the 2nd internal HD. As for the C drive, I had no data left on it just software I could reinstall, so I just reformatted it at the DOS prompt. Didn't get a chance to reinstall Windows so I turned up with a PC that had to boot from a floppy disk and all you got was a C> prompt! The previous day we had a meeting where I was told I had to 'sanitize' my personal computer so I did as I was told (hahaha) and wasted a few hours and a few hundred quid of their time. That thought them a lesson and was much more amusing than merely refusing to oblige or quoting their lack of rights to inspect my personal property!!! I guess you could do exactly the same and greet them with a 'squeaky clean laptop! LOL!

 

Some friends advised me to go to the doctor and get signed off for stress. I am really really bad at that sort of thing and the 1st day I went I didn't get a sick note! They told me I should ask for a doctor who knew about stress and I made an appointment for Thursday, when I got a 3 week signoff. My disciplinary had already been scheduled for the previous Monday but one of my friends drafted a long letter over the w/e, explaining the reasons why I wasn't going to attend. One of them was the 'stress I was suffering due to their actions', another was the need to get hold of the evidence they had against me, without which I couldn't defend myself. I thought I'd just get 'sacked by default' like the CCJs but I managed to get the infamous disciplinary postponed nearly 2 months thanks to my sick notes. They eventually held it in my absence and sacked me but I got an extra couple months pay out of the b*****ds. I filled out an ET form and eventually was offered a small 'commercial settlement' which I accepted, which came with an agreed reference (which I wrote myself). The whole thing was officialy ratified by ACAS and a lawyer I found at the free legal advice centre in Toynbee Hall on the edge of the City.

 

That's my story, you could get some pointers from it, I reckon 'big 4 accountancy firms' work in much the same was as investment banking...

 

Best of luck!

[bex76]

Why have you agreed for them to come to your house? Refuse to let them into your house. They cannot enter without a court order and that will take a few days for them to organise. Your home and computer are private and that constitutes an invasion of privacy. While they are organising the court order move your PC elsewhere.

 

I have worked for the big 4 before and I do not recall anything that permitted them to enter my home. Also, when they arrange a meeting say you need some more time to prepare and delay it. You can start now by saying that you have had legal advice saying that they cannot enter your home and you are in the process of obtaining a full legal consultantion meeting.

 

Oh put it in writing that your understanding is that they cannot enter your home and you wish be notified of any court hearing date to discuss a search order, so that you can attend and object. They hearing will not be granted that quickly.

Edited August 11, 2011 by bex76

[RachelMD]

But at the end of the day, unlesss there's contractual provision that forbids them, they can still say that you resigned whilst under investigation for Gross Misconduct on any subsequent reference.

Which is almost always damning negative inference to any potential employer, if left unchallenged.

If you're innocent, it might be better to fight the allegations.

[misterc]

Just to unearth and update this one (and thanks to everyone that has replied - @flowerchild - nice to see that I'm not alone!), the current state of play is:

 

• Investigation is complete - I decided to let them into my home as I wasn't that bothered about keeping the stuff and (perhaps naively) thought that by cooperating, it might go in my favour ... hmm
  
• I was invited to a disciplinary hearing that was due to take place tomorrow (1/9)
  
• Yesterday I was signed off sick by my GP for 2 weeks (i.e. to 13 September)
  
• I'm due to leave the firm on 9/9 as this was the agreed leaving date when I resigned
  
• I have today sent in the 'fit note' together with a letter setting out grievances against my boss before and after I resigned, holes in the investigation process and a failure of the firm to stick to policy etc. (the letter is 6 pages long!)
  

 

I think that the letter contains the basis of a case for constructive dismissal (the stuff about my boss primarily) or unfair dismissal (e.g. if they sack me when I'm sick and unable to present my case).

 

Anyone care to venture an opinion as to the most likely outcome?

 

@RachelMD - I actually resigned to go to a competitor before they made the allegations. My view on this is that they want to discredit anyone that leaves to join a competitor if they are at all able to.

 

Finally, my prospective employer is completely on my side and is now under the illusion that they have recruited some kind of god!

[Sidewinder]

Finally, my prospective employer is completely on my side and is now under the illusion that they have recruited some kind of god!

 

This is by far the most important thing - if they know what really happened then it doesn't matter (for now at least) how the former employer tries to dress it up. Nevertheless clearing your name should continue to be your goal and it appears that you are doing everything correctly.

 

On what basis have you been signed off sick? Stress? In theory at least they could fast track the Grievance OR if the Grievance relates directly to the Disciplinary then they could deal with both simultaneously to try and conclude the process before your leaving date. HOWEVER, this is fraught with potential problems (for them) as to deal with the process(es) fairly they would have to invite you to a hearing (even if off sick), to which you would decline on the grounds of being unfit to attend through sickness - even if this was offered to take place at a neutral venue or even at home. Again, in theory, they could still hold a hearing in your absence in view of the timings involved and the need to conclude proceedings, but were this to result in dismissal, it would potentially be an Unfair Dismissal hearing waiting to happen due to them denying you the opportunity to defend.

 

The most likely outcome IMO would be that the charge is left on file whereby they could quite lawfully say in response to a reference request that you were suspended pending disciplinary proceedings at the time you left which could not be concluded. Providing they left it at that they would probably be in the clear, but any more than that and you may have a reasonable claim for defamation.

[misterc]

Thanks - I completely agree with your assessment of how this is likely to pan out. My fit note states 'exhaustion' as the reason and yesterday they sent another letter inviting me to a re-arranged hearing next Wednesday, 2 days before I am due to leave the firm anyway, and have suggested a written representation as one potential option.

 

I have drafted a response which states that I will not be well enough to attend any hearing next week and that under normal circumstances I would expect them to provide me with sufficient time to convalesce so that I am able to be present and defend my self in person to the best of my ability. I've also stated that I don't believe it to be fair to insist upon a written representation simply to allow my employer to gain closure on the matter.

 

For good measure I have also stated that my chosen companion is on leave, returning on 12 September, and that, again, under normal circumstances (and per their own policy) the hearing would be re-arranged to allow my companion to attend. The fact that I will have left the firm by this point is irrelevant. As a result, if they hold any hearing in my absence not only would it be unfair but to do so would contravene their own policy.

 

The way that I see this is that it is riskier by far to attend a disciplinary when the evidence is stacked against me, irrespective of why I claim to have done it and so the outcome will undoubtedly be dismissal. I'd far rather have this left as a grey rather than black mark against my name, just in case I ever need a reference from them in future.