Help - pregnant and suspended for possible gross misconduct

[eyh]

Hello

I have recently been suspended from work due to some emails sent between myself and a colleague where we were slagging off our boss, pending investigation.

My colleague was actually sacked the day before, but for issues relating to her performance and mistakes she had made. She had no mention of these emails.

I cannot deny the emails, and I know I'm an idiot sending them. Within our emails we had discussed the fact I'm pregnant (which I hasn't told my boss yet). When I first fell pregnant a couple of years ago, he reacted badly and extended my probation period as a knee-jerk reaction.

Now I can't help but wonder if I'm being disciplined like this because I'm pregnant, and he wants rid of me - especially as there had been no mention of this to the other person involved.

I am planning to raise a grievance with hr, but I'd appreciate advice on where I stand. Could I pursue the discrimination route if I am in fact dismissed? I have worked there for almost 3 years.

Many thanks
Eyh

[teaboy2]

Re: Help - pregnant and suspended for possible gross misconduct

HI Eyh

Regarding the content of the emails, did you yourself make an defamatory comments about your boss (i assume hes a manager, yes?). If so can you recall what it was you said about him? As its vital we know what you said if anything that may have been defamatory. Also were the emails company email addresses or private personal email addresses.

As for the disciplinary procedure, what was the reason given for your suspension? And do you have a copy of the companies IT policy?

Reason i ask all the above, is because whether your pregnant or not may be irrelevant if you were in breach of IT policy.

Though yes your bosses past action of extending your probationary period after becoming aware you were pregnant the first time round, was less favorable treatment and likely discrimination, and you should have brought a grievance back then. However it is worth mentioning it to HR in your grievance, but hold off on your grievance for now until we say otherwise, as you may not have any grounds to make such a grievance if you were in breach of IT policy.

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

Hello

Yes he is the managing partner, it's a small company. I said various things such as 'he's an idiot', probably 'I hate him' etc. Not get, I know. With regards to whether it was defamatory, I'm not sure - it was just 'bitchiness' between myself and my colleague.

It was via company emails. The reasons given for suspension were 'disregard for authority and abuse of email system'.

The sections of it handbook relating to gross/misconduct are:


Misconduct that may result in Disciplinary Action

The following lists represent examples of actions or misconduct that may result in disciplinary action being taken against an employee ranging from a written warning to dismissal; they are not exclusive or exhaustive and are by way of example only.

The Company reserves the right to consider other acts as falling within these categories and it should be understood that repeated or continuing acts of misconduct may result in increasing levels of disciplinary action being taken against an employee including dismissal.

The following are examples of misconduct that may on the first occasion or instance result in a written warning being issued to an employee. Subsequent acts of misconduct or continued poor performance may result in a final written warning and ultimately dismissal:

Unauthorised absence and, or unacceptable levels of absence from work.
Unauthorised lateness and poor timekeeping.
Unsatisfactory work standards or poor work performance.
Rude, abusive or threatening behaviour.
Violation of safety rules.
Unreasonable behaviour except where such actions result in a dangerous occurrence, an accident or injury which will be treated as gross misconduct.
Misuse of the Company’s facilities e.g. equipment, vehicles, internet, e-mail and computer facilities.
Failure to comply with written policies, procedures and (verbal) instructions relating to an employee’s job.
Failure to observe the Company’s internet and computer security policies and procedures.


The following are examples of gross misconduct that may result in dismissal:

Refusal to carry out the reasonable instructions of a manager without justifiable reason.
Being unfit to work due to suspected alcohol or substance abuse.
Possession, custody or control of illegal drugs on the Company's premises;
Fighting, physical assault or violence.
Theft from the Company, its clients or other employees.
Wilful destruction of the Company's property.
Falsifying records, timesheets and, or other wage or business expense documentation.
Falsifying a qualification that is a stated requirement of an employee's employment or results in financial gain to an employee.
Wilful breach of the Company’s internet and computer security policies including using the Internet to access adult and sexually explicit material, sites containing material which may offend others (for example because of its racist or sexist content), sites promoting criminal acts, hate speech or violence, on line games and pirate software sites.
Indecent behaviour on the Company's or its clients' premises.
Sexual misconduct at work.
Gross negligence which causes or might cause unacceptable loss, damage or injury.
Wilful violation or breach of safety rules and regulations.
Smoking on Company premises.
Breach of the Professional Conduct Policy.
Breach of the Bribery Act 2010.
Any form of behaviour that is considered to constitute bullying, harassment, discrimination or victimisation on the grounds of age, race, gender, sexual orientation, ethnic origin, marital status, disability, religion or belief or for any other reason.
Conduct that brings the Company into serious disrepute.
A serious breach of confidentiality relating to the Company, its employees or its clients.
Being found guilty of or having confessed to or having reasonable grounds to suspect that a criminal act or act of dishonesty, whether committed in the course of employment or not, which makes the individual unsuitable for employment within the workplace.

I believe the relevant part of our IT Policy is:

You must not engage in email related activity that is illegal or distasteful. You must not use, retain, send, distribute or disseminate any text, images, materials or software which:

are or might be offensive or abusive in that its context is or could be considered to be a personal attack, rude or personally critical, sexist, racist or generally distasteful

My (amateur) interpretation is that I have breached IT policy but that it is misconduct rather than gross misconduct.

I can't help but feel he is using this as an excuse to get rid of me.

I appreciate your comments.

[teaboy2]

Re: Help - pregnant and suspended for possible gross misconduct

Yep i suspect it is just misconduct, and not gross misconduct - but then freedom of expression/speech is not misconduct nor is having an opinion of someone.

You can argue your comments about him in your emails are your personal view and opinion of him, and does not mean you have a disregard to authority at all, as in order to be disregarding ones authority you would be ignoring his requests and refusing to do what he asks of tells you to do, which you have not done so and therefore have always done as asked of you by him - Therefore their was no disregard of authority on your part.

You have a right to form an personal opinion of someone, especially where that person committed sexual discrimination against you by extending your probationary period when you informed him your were pregnant with your first child. You therefore belief the actions hes taking against you now are as a result of you now being pregnant with your second child, and therefore is further sexual discrimination - As its funny how hes now disciplining you for simply having a personal opinion of him and expressing that privately in an email to a colleague who funnily enough was sack for other reasons.

Your opinions expressed about him are no different to expressing a dislike to about any other member staff via gossip with work colleagues in the canteen or outside of work, either in person, via private email or via phone call/text. Its not different to when he likely calls an employee and "Idiot" when they make a mistake, and you can say hes not said similar things about others he dislikes, because everybody does it - Put something along those lines in writing as a formal statement, hand it in at the investigatory meeting, then sit down let them read it - Also include a list of dates (approximate dates) and incidents where you have been called things by him such as "Idiot" or where hes made innuendos or discriminated against you or treating you less favorably than others and title the letter FORMAL GRIEVANCE LETTER AGAINST (Enter his name).

Basically, lets turn this full circle and right back at him. Ohh and also point out the emails were private and were never meant to have been disclosed or to embarrass him!

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

Thank you so much for your help

[teaboy2]

Re: Help - pregnant and suspended for possible gross misconduct

Can you tell me what date you were suspended on please? - Just so we can keep an eye on the timeline of events. also its unreasonable to keep you on suspension for longer than necessary. So if nothing is heard from them advising you in writing as to when to attend the investigatory meeting withing 14 days of your being suspended, that would be unreasonable.

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

I was suspended on 21st May, so very recent.

[teaboy2]

Re: Help - pregnant and suspended for possible gross misconduct

Ok - For now, get your grievance letter (using what i put above to argue your position) wrote out and ready to hand to them when you attend the investigatory meeting. Then sit back, try relax and do something to take your mind of things and fill in the time, and update us once you hear anything. Ok?

Ohh and also read up on the acas code of conduct grievance and disciplinary procedure - So that your aware of the correct procedure they should be following, if they miss aby part of do something wrong, let us know straight away, even if your not certain! - http://www.acas.org.uk/?articleid=2174

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

I've been invited to a disciplinary meeting on Friday. What should I prepare in terms of my defence/case/grievance??

Apparently I will be sent the allegations tomorrow and the emails (which were recovered after being deleted) are being couriered.

Also, I can't ever recall him calling me anything to my face (or anyone else to be honest) although that's not to say he hasn't, more that I haven't registered. I know he and another senior colleague 'bitch' about staff, but I couldn't pick out anything particular they've said, just that I've overheard them saying various things.

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

Ok so the copies of the emails have arrived.... there's quite a lot and I suppose volume could be a potential issue. However, the names I've called him are 'idiot' twice, doofus, bug and tightar*s. I've never had a warning about email use.

I can't help but think some emails have been deliberately not included as there are not many that elude to me being pregnant, although there is one which says 'I can't wait for you to tell him you're having a little one, he'll have a baby' . I wonder if they've been left out deliberately? I also thought I'd said 'I hate him' but that doesn't seem to appear either.

Mostly they are chit chat - some moaning about work/office/colleagues, others simply confirming lunch arrangements.

[Tools]

Re: Help - pregnant and suspended for possible gross misconduct

Does the company have a policy regarding "misuse" of emails? If so can you post up the actual wording.

[Kati]

Re: Help - pregnant and suspended for possible gross misconduct

Does the company have a policy regarding "misuse" of emails? If so can you post up the actual wording.

....

I believe the relevant part of our IT Policy is:

You must not engage in email related activity that is illegal or distasteful. You must not use, retain, send, distribute or disseminate any text, images, materials or software which:

are or might be offensive or abusive in that its context is or could be considered to be a personal attack, rude or personally critical, sexist, racist or generally distasteful

My (amateur) interpretation is that I have breached IT policy but that it is misconduct rather than gross misconduct.

I can't help but feel he is using this as an excuse to get rid of me.

I appreciate your comments.

??

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

Hello

The handbook states the following under misconduct:

• Misuse of the Company’s facilities e.g. equipment, vehicles, internet, e-mail and computer facilities.

And the IT Policy:

• General Principles

• Information relating to the Company’s clients and its business operations is confidential. You must treat the Company’s paper-based and electronic information with utmost care.
• When using e-mail, all expressions of fact, intention and opinion may legally bind employee and / or the Company. The same principles apply to information exchanged in this way as those under the terms of contracts of employment regarding other means of communication. For example, sending defamatory, sexist or racist jokes or other material are grounds for an action for defamation, harassment or incitement to racial hatred in the same way as making defamatory, sexist or racist comments to a colleague.
• You should be aware that storing personal details on a computer file is subject to the Data Protection Act. Employees storing such information must inform their Manager to ensure that there is a record of this with the Data Protection Registrar.
• You must not use the Internet or e-mail for any purposes that would be subject to disciplinary or legal action. If you are in doubt about a course of action, take advice from your Manager.
• You must exercise due care when collecting, processing or disclosing any personal data and only process personal data on behalf of the Company where it is necessary to undertake your duties.
• On-line Internet or e-mail accounts created for business purposes that require usernames and associated passwords must be disclosed to the Company upon request.
• Material that is intended to be loaded onto any Company system via any attached peripheral equipment (e.g. portable hard drive, memory stick, floppy drive, CD-ROM, zip drive etc) must be virus checked. Virus protection software installed on company laptops and PCs must not be disabled; nor should any installed firewall be disabled.
• You should take reasonable steps to ensure the security and safe keeping of all company equipment when working at its premises, its clients’ premises or working remotely.
• It is your responsibility to keep confidential your personal password(s).
• In as far as it is possible, you should ensure that computers issued to you remain clean from unauthorised URLs, cookies or downloaded images.
• Rules for Use of Computers

Most guidelines for the use of computers are common sense, but nonetheless, the following rules regarding the use of IT must be observed:

• The Company provides computers for the purpose of conducting business. If you are provided with access to computer systems and confidential information, care must be taken with regard to the systems use and protection of passwords etc.
• Monitors should be switched off at night.
• Attempting to gain, or gaining access to systems, or areas of systems which you have not been authorised or knowingly seeking to access data which you reasonably know to be confidential but have no legitimate reason to access will be considered an act of gross misconduct.
• Copying of copyrighted material for which you have no licence or authority to copy onto the Company’s equipment (e.g. music files from CDs, memory sticks and portable hard drives) is strictly prohibited.
• Software must not be loaded onto a machine without receiving appropriate permission from the IT Department.
• If you use software downloaded from the Internet (irrespective of its source) in work, you must ensure such use is permitted. Use of such third party software poses a threat to the Company including licence and intellectual property infringements.
• Never agree to any licence online without checking with the IT Department first.

Up to date virus checking software provided by the Company must be installed and active on all computers. The threat of attack from computer viruses is always present; it is essential that all diskettes, archives, e-mail attachments, downloads etc. are viruses scanned before installing them.

• Use of E-Mail

You should take care when using email because email messages are perceived to be less formal than paper-based communication and there is a tendency to be less careful about the content. Bear in mind that all expressions of fact, intention or opinion via email can be held against you and/or the company in the same way as verbal or written expressions.

Formal methods of email distribution (e.g. distribution lists) must not be used for sending emails that are not relevant to our business.

As a user of our e-mail systems you are responsible for respecting the following company standards and guidelines:

• format of e-mails in respect of usage of disclaimers, email signatures and presentation (use of graphics, fonts and message formats)
• management of your mailboxes to minimise mailbox size whilst complying with requirements for email retention and archiving
• avoidance of sending excessively large emails or those with unnecessary attachments.

Inappropriate Use

You should exercise due care when writing an email to avoid being rude and ensure that your message meets professional standards. You must not make any statements on your own or the company’s behalf that do or may defame, libel or damage the reputation of any person.
You must not engage in email related activity that is illegal or distasteful. You must not use, retain, send, distribute or disseminate any text, images, materials or software which:

• are or might be considered to be indecent, obscene, pornographic or illegal
• are or might be offensive or abusive in that its context is or could be considered to be a personal attack, rude or personally critical, sexist, racist or generally distasteful
• encourage or promote activities which make unproductive use of the company’s resources
• involve activities outside the scope of your responsibilities e.g. unauthorised selling of good and services
• might affect or have the potential to affect adversely the performance of, damage or overload our system, network and/or external communications in any way
• might be defamatory or incur liability on the part of the company or adversely impact on our image
• would be a breach of copyright or licence provision with respect to both programs and data

• you cannot or are not prepared to account for.

If you consider that an email received by you contains material, which should be referred to the police, the material may be printed and passed to the Managing Partner, who will be responsible for notifying the police that such an email has been received. In any other circumstances, any emails that contain indecent, obscene, pornographic, sexist, racist or otherwise illegal material should not be printed, but should be deleted immediately.

The following activities are expressly forbidden:

• the deliberate introduction of any form of computer virus
• seeking to gain access to restricted areas of the email systems or other hacking activities
• forgery or attempts to read other users mail without express permission.

• Use of E-Mail

All the Company's resources, including computers and access to the internet are provided solely for business purposes.

The purpose of this Policy is to ensure that you understand the way in which access to the internet should be used within the company, to comply with legal and business requirements. This includes the extent to which you may use the computer(s) owned by the company for the private use.

This Policy applies to all employees of the Company and failure to comply may lead to disciplinary action in line with the Disciplinary Procedures. In addition, if your conduct is unlawful or illegal you may be personally liable.I also found this section

SECTION 4 - HR POLICIES & PROCEDURES

The Company’s Human Resource Policies and Procedures are provided in this Section which:

• Provide detailed information to employees on the Company’s employment arrangements, some of which are referred to in your terms and conditions of employment.
• Provide information relating to employment rights as provided by legislation; these procedures provide a summary of employment rights and entitlements and also contain details of the administration processes associated with exercising such rights where applicable. Copies of all referenced administration forms are provided on the HR Database.

It should be noted that the Policies and Procedures contained in this Section do not form part of employees’ contracts of employment; as a result, the Company reserves the right to amend the Policies and Procedures at any time to reflect changes in legislation and to vary their operation according to its requirements. Is this relevant??

In my contract it says:

1. Use of the Employer’s Computers & Telephones

As a condition of your employment, you will understand and agree that:

1. Use of the Employer’s telephones, facsimiles and the Internet is generally restricted to business use and the Employer reserves its right to record and monitor incoming and outgoing phone calls, facsimiles, e-mail transmissions and internet usage. Misuse or abuse of these facilities is likely to result in disciplinary action being taken against you.
2. The Employer maintains its right to inspect any and all files stored in private and or common access areas of its network, on individual computer hard drives as well as all removable peripheral equipment (e.g. memory sticks, portable hard drives, CD-Rom discs, zip discs, floppy discs, etc.).
3. All data on your computer, the network or retained in any electronic format should be kept in the strictest of confidence. Copy of data should not be taken other than for client management purposes. You should take all reasonable precautions to ensure that any electronic data howsoever held and that printouts of your data are secure from theft or copying.
4. The Employer reserves the right to access and monitor all messages created, sent, received or stored on the Employer’s systems. These messages are not the private property of employees and as such there should be no expectation of privacy in any circumstances. The content of e-mail messages may be disclosed to other employees and to third parties without your further permission and at the discretion of the Employer. E-mails and the Internet should not be used to create, send receive or store any material which is offensive, libellous, defamatory, discriminatory, and disruptive or infringes copyright. Access to the Network is provided for legitimate business purposes on behalf of the Employer.
5. You will be required to adhere to the Employer’s IT Policy and are warned that failure to do so may result in disciplinary action being taken against you.

Thanks in advance for any comments

[Tools]

Re: Help - pregnant and suspended for possible gross misconduct

Sorry Kati & eyh I missed that bit , and thanks for the full policy.

I'm afraid based on that policy (and I'm sure you'll agree) that even if the true reason for your disciplinary is indeed the fact you are pregnant, they can easily use your emails to bring a case to dismiss you. Sorry not to give you a more positive opinion.

[eyh]

Re: Help - pregnant and suspended for possible gross misconduct

Could they really dismiss me? How is it gross misconduct?

Misuse of emails seems to fall under misconduct rather than gross. Sorry if I'm missing something