Share |

Disciplinary

I open my employees' e-mails to investigate a disciplinary matter?
Nine months ago we issued an employee with a second stage written warning for poor timekeeping, but failed to specify the duration of the warning. Our disciplinary policy says warnings normally remain on file for at least six months. We're investigating allegations of verbal abuse by the employee. If the allegations are upheld can we rely upon the previous warning?
I have an employee who has worked for me for over 15 years and is now an accounts manager. Recently we have noticed financial irregularities on a number of accounts he deals with and believe that he may be defrauding the company. How should we approach the problem?

I open my employees' e-mails to investigate a disciplinary matter?

The short answer is yes. An employer may monitor its employees' e-mails for the purposes of investigating a disciplinary matter. That said, employers need to ensure they do not go too far and risk claims for unfair dismissal or breach legislation which dictates what employers can do in terms of monitoring their staff. Monitoring may therefore take place provided that employers stick to the following best practice:

In common with any disciplinary procedure, it is crucial that the employer has reasonable grounds for believing that the misconduct in question has been committed by the employee who is the subject of the e-mail monitoring. If not, then there is a risk that any subsequent dismissal will be potentially unfair.
Prudent employers will have an information systems usage policy in place that prescribes the parameters of an employer's right to monitor its employees' e-mails. Employees should be made aware of such policy at the start of their employment and also told where the policy can be found if future reference to it is required.
In common with general data protection guidance from the Information Commissioner's Office, employers should not monitor e-mails beyond what is necessary for the disciplinary investigation. To this end, employers should also ask themselves whether the monitoring is likely to achieve the desired result. For example, employees legitimately expect to keep their personal lives private, so e-mails that are obviously personal should not be monitored.
It is always advisable to conduct an impact assessment in accordance with the UK Information Commissioner's Office guidelines for monitoring e-mails at work.

In terms of actual e-mail monitoring, only relevant e-mails should be identified in terms of volume. A filtering process in terms of e-mail subject should then be undertaken and only those e-mails that appear relevant and necessary should be opened and if absolutely necessary, printed, collated and used as evidence.

Nine months ago we issued an employee with a second stage written warning for poor timekeeping, but failed to specify the duration of the warning. Our disciplinary policy says warnings normally remain on file for at least six months. We're investigating allegations of verbal abuse by the employee. If the allegations are upheld can we rely upon the previous warning?

If you dismiss your employee and they claim unfair dismissal, an employment tribunal will have to decide whether you have acted as a reasonable employer throughout the disciplinary procedure leading up to dismissal.If the verbal abuse carried out by the staff member is very serious or part of a sustained campaign, this may of course justify imposing a higher-level warning in the first instance. Verbal abuse, which amounts to unlawful discriminatory harassment, will often warrant dismissal in any event.

However, the tribunal will consider the Advisory Conciliation and Arbitration Service (Acas) Code of Practice on Disciplinary and Grievance Procedures, which suggests first written warnings should be disregarded after six months and final written warnings after 12 months. As you failed to specify the duration of the warning and your policy suggests these normally last just six months, it is advisable to proceed on the basis that the warning has expired.

The Court of Appeal recently held in Airbus v Webb (2008) that an employer who had taken an expired final written warning into account when deciding to dismiss an employee was, nevertheless, acting reasonably. The facts were unusual as the expired warning was substituted in place of dismissal, following an appeal by Mr Webb. This was a similar offence, committed only three weeks after the warning had expired and was an act of gross misconduct.In certain circumstances, this decision confirms that you may be able to take into account your employee's previous disciplinary record in deciding any subsequent disciplinary sanction.

However, expired warnings or those covering an issue unrelated to the dismissal, may be best left unused as you cannot fully rely on these old records bearing much weight in a tribunal.

I have an employee who has worked for me for over 15 years and is now an accounts manager. Recently we have noticed financial irregularities on a number of accounts he deals with and believe that he may be defrauding the company. How should we approach the problem?

If you suspect that a member of staff is defrauding the company you should suspend him while you carry out an investigation. Suspension is on full pay and is NOT disciplinary action. If you do not suspend, you could lose the option to dismiss if your investigation concludes that there was fraud. The length of service of your employee has no bearing on the process you use. You will only take this into account in deciding what level of action to take when the investigation is complete. Follow the statutory disciplinary procedure as well as any requirements in your contracts of employment. Remember that at this stage everything is only a possibility and there may well be an explanation other than fraud, including that there is actually nothing wrong. Listen to what your employee has to say and then investigate the explanations he gives. It may be that this is an issue of incorrect recording or someone promoted beyond his ability. In that case you could consider training or demotion if this is written into your disciplinary policy. However, if after your thorough investigation and disciplinary hearing you feel this is a conduct matter and you believe that the employee is responsible, you have to choose the correct sanction. If you decide this is gross misconduct, the result will be summary dismissal. Otherwise you will have to consider an appropriate warning. Give your decision in writing, setting out your reasons, and include the right of appeal.