# Misuse of Emails: Disciplinary Hearing, advices needed



## RebelNeutron (Jan 4, 2014)

Hi, I'm facing a disciplinary hearing on Monday for serious breach of the company IT,emails policy.
Basically, I was emailing too much a colleague in another office of the company, with no work matters. 
We sometimes emailed each other random stuff and banter while not busy. 
The colleague has been dismissed for other reasons but my name appears in HR documents.
I already have a warning and fear a dismissal to start the year.
Any advices for my defence?


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## farmerbarleymow (Jan 4, 2014)

It all depends on the company policy on use of IT for personal reasons.  And the volume of e-mails involved. Also the nature of the current warning you have, and what your disciplinary policy says about further instances of potential misconduct. 

Good luck, and I'm sure there are others who have more helpful advice to give who'll be able to help.


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## Jon-of-arc (Jan 4, 2014)

No advice to give, but a lovely lovely person I know was sacked for this a long time back.  I have been disciplined.  They kind of have all the evidence they need to do whatever they want. 

Best defence may be that you did all the work allocated to you (if you did...), or had a reasonable belief that some personal email use was allowed.  

Tag the usual suspects cesare for proper advice.

Good luck.


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## Puddy_Tat (Jan 4, 2014)

possibly a little late to seek union representation now if you haven't already - and bear in mind that even if you were to join a union now, most won't take up cases where the problem arose before you joined (in the same way that you wouldn't get house insurance if you only rang up after your place caught fire.)

This on ACAS website may help in terms of procedures etc.

Have you already seen employer's disciplinary procedure?

Was the previous warning for something similar or something different?  And did it say that "if you do X again we will sack you" or "if you do anything naughty again we will sack you"? - if the former and it was for something different, then you are on stronger ground.

In your defence - was the IT policy clear in what it says, and had it been brought to your attention?

Is there any custom and practice here (e.g. have others been disciplined for similar actions, and what was the outcome?) - you may have grounds for appeal at least if others have done similar and not had similar outcomes.

(all the above subject to the disclaimer that I'm not a lawyer, HR person and I'm not a union rep and haven't been for some time.)


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## cesare (Jan 4, 2014)

RebelNeutron said:


> Hi, I'm facing a disciplinary hearing on Monday for serious breach of the company IT,emails policy.
> Basically, I was emailing too much a colleague in another office of the company, with no work matters.
> We sometimes emailed each other random stuff and banter while not busy.
> The colleague has been dismissed for other reasons but my name appears in HR documents.
> ...


In addition to what others have said above, you have a reasonable expectation of privacy at work. How did they identify this "serious breach" and did you mark your personal emails as "personal" in the subject line?


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## equationgirl (Jan 4, 2014)

If you've been sharing material that you class as 'banter', could it have been seen as racist or homophobic or offensive by others? Especially if it links to websites etc that are not safe for work, that may have been in breach of the policy.

May I ask if the warning already on your file was for a different breach or for a similar breach?


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## Puddy_Tat (Jan 4, 2014)

cesare said:


> In addition to what others have said above, you have a reasonable expectation of privacy at work. How did they identify this "serious breach" and did you mark your personal emails as "personal" in the subject line?



Depends.

Some places I've worked have IT policies which made it clear that any e-mails sent or received via that organisation's e-mail system belong to the organisation not personally to me, and that they have the right to monitor incoming / outgoing e-mails.


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## equationgirl (Jan 4, 2014)

Puddy_Tat said:


> Depends.
> 
> Some places I've worked have IT policies which made it clear that any e-mails sent or received via that organisation's e-mail system belong to the organisation not personally to me, and that they have the right to monitor incoming / outgoing e-mails.


Ours is like that.

We can't look at a number of sites at work, such as facebook, and going on urban would be job suicide for me.


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## cesare (Jan 4, 2014)

Puddy_Tat said:


> Depends.
> 
> Some places I've worked have IT policies which made it clear that any e-mails sent or received via that organisation's e-mail system belong to the organisation not personally to me, and that they have the right to monitor incoming / outgoing e-mails.


Even if they do make that clear - there is still a reasonable expectation of privacy so they need to have a *very* good reason for accessing personal emails unless the organisation has good reason to believe that there is activity going on that justifies the breach of privacy - hence my question.

Interception of emails is covered in the Information Commissioner's Employment Practices Code.

Edit: The organisation should be using an adverse impact assessment to justify any interceptions, taking into account the Lawful Business Practice Regs and RIPA. We need more information from the OP, tbh.


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## stuff_it (Jan 4, 2014)

cesare said:


> Even if they do make that clear - there is still a reasonable expectation of privacy so they need to have a *very* good reason for accessing personal emails unless the organisation has good reason to believe that there is activity going on that justifies the breach of privacy - hence my question.
> 
> Interception of emails is covered in the Information Commissioner's Employment Practices Code.
> 
> Edit: The organisation should be using an adverse impact assessment to justify any interceptions, taking into account the Lawful Business Practice Regs and RIPA. We need more information from the OP, tbh.


I think the issue here is that they have already accessed them due to the colleague being under investigation.


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## free spirit (Jan 4, 2014)

It sounds more like they've discovered the emails by checking through the other guy's email history after he was sacked, which I'd think would be pretty reasonable on an actual work email account.

I doubt there can be any expectation of complete privacy on a specific work email account, as the employer will always need to access those emails after the employee leaves, and usually the contents of any work emails would specifically belong to the employer, especially if they were written in work time.

That said, if there was obviously deeply personal stuff being discussed, they probably should just note the email and move on.

OP - how much of any issue this is to me probably depends a lot on whether you're expected to take your lunch / coffee breaks at your desk. If you are, then I'd think you'd have a good defence to simply state that all non work communications were made during your contractual break periods, and there'd really be sod all they can say about it (unless you'd literally spent all day doing it).


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## equationgirl (Jan 4, 2014)

free spirit said:


> It sounds more like they've discovered the emails by checking through the other guy's email history after he was sacked, which I'd think would be pretty reasonable on an actual work email account.
> 
> I doubt there can be any expectation of complete privacy on a specific work email account, as the employer will always need to access those emails after the employee leaves, and usually the contents of any work emails would specifically belong to the employer, especially if they were written in work time.
> 
> ...


Depends on the time of the emails though - if they're datestamped at points throughout the day, claiming they were made on a contractual break period clearly won't stand up.


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## Pingu (Jan 4, 2014)

if you called the MD a twat though you may be in bother...


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## Miss-Shelf (Jan 4, 2014)

Pingu said:


> if you called the MD a twat though you may be in bother...


if you did in a private email could that be held against you?   In my place the senior management is routinely pilloried in emails including union communication although they are probably careful not to be defamatory


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## free spirit (Jan 4, 2014)

equationgirl said:


> Depends on the time of the emails though - if they're datestamped at points throughout the day, claiming they were made on a contractual break period clearly won't stand up.


depends if they actually get time specific contractual break periods though, if they don't, then you'd basically be making the point that you've not been given the 20 minute break you're legally entitled to, therefore they should shut the fuck up about you taking some time out every so often to send a few emails in compensation for this loss of your proper breaks.

I know loads of office workers are expected to eat their lunch at their desks, and still answer the phone etc if it rings, and view the ability to spend a bit of time doing personal stuff on the computer when their quiet as a quid pro quo thing for this.

It's probably not right, but unless they have been ensuring the OP does take proper statutory breaks away from the desk, then they're on well dodgy ground and the HR will know this as soon as it's mentioned, so will likely back down to avoid opening that can of worms.


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## cesare (Jan 4, 2014)

stuff_it said:


> I think the issue here is that they have already accessed them due to the colleague being under investigation.


Aye - but I'm asking about the circumstances of them being accessed, cos the OP has asked for ideas for defence. If the OP is able to point to a personal data/privacy breach by the organisation, and/or that the organisation's IT policy (and how it's communicated, and carried out) is in itself in breach of data/privacy legislation and/or best practice - there's potentially a halfway decent defence there going into the disciplinary hearing on Monday.


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## Pingu (Jan 4, 2014)

Miss-Shelf said:


> if you did in a private email could that be held against you?   In my place the senior management is routinely pilloried in emails including union communication although they are probably careful not to be defamatory



the universal catch all of "bringing the good name of... into disrepute"


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## Miss-Shelf (Jan 4, 2014)

Pingu said:


> the universal catch all of "bringing the good name of... into disrepute"


if they're not public though?   (I know nothing of employment law btw - just wondering)


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## emanymton (Jan 4, 2014)

These things are always hard without knowing the full details and the company in question.

A couple of thoughts but mostly just echoing what others have said.

1, Exactly what are the companies polices on email usage, have you read it? And more to the point have you ever had to confirm you have read it? If not you may be able to ague that you were never made aware of the policy, but now you are you will never do anything like this again.

2, If they are primarily concerned with the fact that you where emailing them while you where working, well most workplaces assume that a reasonable amount of conversation amount colleagues is acceptable. You could try and argue this is no different. 

3, As Cesare said there is the issue of privacy and data protection. I am not sure if the emails sent from a work email account would be covered by data protection, but as far as I know any data gathered on you is covered and I would assume this includes you email history. One of the principles of the data protection act is that data can only be used for its stated purpose, which means that if there is no problem with the content of your emails and if it is not stated that data about your emails can be used to monitor your working time, you could argue that you email history is not relevant to the case against you. Although I would think this line of argument is more at home in a tribunal that a workplace hearing.


ETA - Good Luck


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## RebelNeutron (Jan 5, 2014)

Thank you for your replies.
- there were no material shared.
- the previous warning wasn't related, more about performances, which I fought against as I felt harrassed about the way I was treated. Which resulted on having a new role where my performances are good- despite the emails.
- I was aware of the right from the company to access my emails, hence nothing way out of order was written.
I won't argue with the fact that I haven't sent the emails as they have them and yes this would never came up if my colleague hasn't been under investigation.
Although, emailing my colleague was like an exectutoire and helped me going through that hard times from the previous role!


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## RebelNeutron (Jan 5, 2014)

Also, how hard this disciplinary hearing will make my life with regards to apply for another job?


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## Smyz (Jan 5, 2014)

RebelNeutron said:


> Thank you for your replies.
> - there were no material shared.
> - the previous warning wasn't related, more about performances, which I fought against as I felt harrassed about the way I was treated. Which resulted on having a new role where my performances are good- despite the emails.
> - I was aware of the right from the company to access my emails, hence nothing way out of order was written.
> ...


So they were acting informally as an internal counsellor, helping you deal with terrible treatment from the company before?

That's your defence.


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## RebelNeutron (Jan 5, 2014)

will mention that indeed as it's the truth. plus some emails are 1 sentence only, I agree shouldn't be that much emails -even if I didn't realise that amount - but wasn't every day and when busy there were no emails.


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## RebelNeutron (Jan 5, 2014)

Smyz said:


> So they were acting informally as an internal counsellor, helping you deal with terrible treatment from the company before?
> 
> That's your defence.


will mention that indeed as it's the truth. plus some emails are 1 sentence only, I agree shouldn't be that much emails -even if I didn't realise that amount - but wasn't every day and when busy there were no emails.


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## Smyz (Jan 5, 2014)

Don't just mention it, make a big fuss about it.

How did they deal with the harrassment before apart from moving you to a new role?

What are their procedures and did they follow them?

What happened to the person who was harrassing you?

Make them shit their knickers.


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## RebelNeutron (Jan 5, 2014)

well... they didn't recognize it as harrassment as they had evidence from my poor performances - which is when I was crawling under pressure and every little mistake was noted and not dealt fairly compared to my team colleagues as they were not in trouble with their performances.
had a warning issued and to be honest I couldn't bother going further as I just wanted this to end, and feeling happier with my new role. 
Plus I had my colleague support via emails and texts.


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## pinkmonkey (Jan 5, 2014)

equationgirl said:


> If you've been sharing material that you class as 'banter', could it have been seen as racist or homophobic or offensive by others? Especially if it links to websites etc that are not safe for work, that may have been in breach of the policy.


Someone I know sat on an employment tribunal where someone was sending emails to their collegues, they sent 'two girls one cup' around the office and someone complained to their boss. Everyone sitting on the tribunal had to watch this to judge how serious the material was. They were very, very shocked. Needless to say the tribunal agreed with the employer. General rule of thumb with anything online (for me anyway) is would you be happy if that content was sent on a postcard and anyone could see it? Especially applies to office emails. (Thank feck I don't have a boss).


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## RebelNeutron (Jan 5, 2014)

pinkmonkey said:


> Someone I know sat on an employment tribunal where someone was sending emails to their collegues, they sent 'two girls one cup' around the office and someone complained to their boss. Everyone sitting on the tribunal had to watch this to judge how serious the material was. They were very, very shocked. Needless to say the tribunal agreed with the employer. General rule of thumb with anything online (for me anyway) is would you be happy if that content was sent on a postcard and anyone could see it? Especially applies to office emails. (Thank feck I don't have a boss).


ahah well i'm glad i haven't done that... this video is proper sick!
My emails did not contain any material only words...


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## Athos (Jan 5, 2014)

How many emails, over how long?


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## Citizen66 (Jan 5, 2014)

Avoiding misusing company equipment for leisure purposes are what smart phones were invented for.


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## Citizen66 (Jan 5, 2014)

Have you got representation? The best way out of tight corners is for a rep to meticulously check the company has followed their own disciplinary procedures to the letter. In my experience management can dig more holes for themselves than the person being disciplined has.


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## oryx (Jan 5, 2014)

RebelNeutron said:


> well... they didn't recognize it as harrassment as they had evidence from my poor performances - which is when I was crawling under pressure and every little mistake was noted and not dealt fairly compared to my team colleagues as they were not in trouble with their performances.



Is this worth revisiting in the context of your workplace's bullying and harassment policy? Just a thought.......


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## RebelNeutron (Jan 5, 2014)

I haven't had any rep, a colleague wanted to come along but i think fear of consequences were holding that person to come along.
There was a lot of emails when i checked as soon as i heard about it, but not daily and sometimes just stopped if too busy...
Weirdly we were also texting or calling each others after work so it was really when i had down moments at work just good to talk to someone.


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## Miss-Shelf (Jan 5, 2014)

Citizen66 said:


> Have you got representation? The best way out of tight corners is for a rep to meticulously check the company has followed their own disciplinary procedures to the letter. In my experience management can dig more holes for themselves than the person being disciplined has.


many disciplinary hearings are conducted by employers who are not following their own proceedures so this is good advice
it may be that you can stall the process a bit by asking for clarification of their process and some time to go through their policy and your rights?
I did this when I was ambushed into what started to feel like a disciplinary - it bought me valuable time to get more advice and to get my thinking straight


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## equationgirl (Jan 5, 2014)

Best of luck, let us know how you get on.


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## RebelNeutron (Jan 6, 2014)

Thanks to all of you... weirdly now I feel the stress coming out... see if i'm home before 6pm...


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## gabi (Jan 6, 2014)

Christ - that's a fascist workplace. My last workplace in london was an ad agency and me and my colleagues definitely pushed any swear filter or whatever to the limit. Well, there was clearly no filter in place actually as one my colleagues had some kind of email tourettes... I wouldn't try it working in my current place tho as its a big corporate mind you. I use gmail for personal shit.

I'd tell them to shove their fucking job where the sun dont shine if i was you. Go loco on them for invading your privacy.


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## RebelNeutron (Jan 6, 2014)

When you sign your contract with them you are aware that they can check your emails... that's why I didn't think I was going to the wrong path.. what annoys me the most is that other people are going on clothes shopping or travel websites all day long or using their iphone (no i dont have one) sometimes in front of managers and nobody says anything to them...


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## gabi (Jan 6, 2014)

perhaps they're looking for an excuse to move you on, for other reasons? your boss must be a total arsehole.


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## RebelNeutron (Jan 6, 2014)

Life is just not  a long quiet river... anyway if their decision is already made there's nothing i can do except moving on to something else!


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## gabi (Jan 6, 2014)

You can at least leave on your terms. Get in a few parting shots.

Perhaps utilise the email system to send a company wide 'farewell' message to your boss, complimenting them on how shit they are. I've done that before - highly satisfying.


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## RebelNeutron (Jan 6, 2014)

I think i will already have enough trouble finding a new job with that hearing so just going to leave head high!


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## Smyz (Jan 6, 2014)

RebelNeutron said:


> When you sign your contract with them you are aware that they can check your emails... that's why I didn't think I was going to the wrong path.. what annoys me the most is that other people are going on clothes shopping or travel websites all day long or using their iphone (no i dont have one) sometimes in front of managers and nobody says anything to them...


What is written in a contract may not be legal or enforceable. I don't understand the legal aspect but there was some good advice earlier in the thread. It might still be worth checking what the data protection situation is.


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## RebelNeutron (Jan 6, 2014)

Ended up with a final warning.


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## Onket (Jan 6, 2014)

RebelNeutron said:


> Ended up with a final warning.


Pleased/Happy with this?


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## equationgirl (Jan 7, 2014)

RebelNeutron said:


> Ended up with a final warning.


Did you get a copy of the disciplinary procedure and did they follow it to the letter, as in all the steps with all the right paperwork? If not, you may be able to dispute the warning via the appeals process.

If you choose to let it stand, keep your head down and don't use the email for ANYTHING not related to work, they'll be watching your account like a hawk.

It'll soon pass, well done for keeping your job.


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## Citizen66 (Jan 7, 2014)

This is useful:

https://www.gov.uk/disciplinary-procedures-and-action-at-work


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## sim667 (Jan 7, 2014)

If the disciplinary looks like its heading towards your dismissal, accuse them of constructive dismissal, this always makes employers stop and think.


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## cesare (Jan 7, 2014)

sim667 said:


> If the disciplinary looks like its heading towards your dismissal, accuse them of constructive dismissal, this always makes employers stop and think.


"Why are they accusing us of constructive dismissal, when it's an actual dismissal"


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## sim667 (Jan 7, 2014)

cesare said:


> "Why are they accusing us of constructive dismissal, when it's an actual dismissal"


 
Constructive dismissal is the act of getting rid of someone with no real just cause in order to give someone else your position, no?

Or does it only apply to redundancy process?


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## Manter (Jan 7, 2014)

sim667 said:


> Constructive dismissal is the act of getting rid of someone with no real just cause in order to give someone else your position, no?
> 
> Or does it only apply to redundancy process?


Constructive dismissal is when an employee resigns because their employer's behaviour has been so bad it has left them with no alternative


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## cesare (Jan 7, 2014)

sim667 said:


> Constructive dismissal is the act of getting rid of someone with no real just cause in order to give someone else your position, no?
> 
> Or does it only apply to redundancy process?


Not exactly. Constructive dismissal is the act of putting an employee in the position where they're forced to resign as a result of the employer's misconduct/fundamental breach of contract. There's lots of different ways of doing it, but for the sake of examples - making you work in dangerous conditions; making you work nights when you're contracted for day shifts; bullying and harassment; sudden demotion without a disciplinary process.


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## sim667 (Jan 7, 2014)

Manter said:


> Constructive dismissal is when an employee resigns because their employer's behaviour has been so bad it has left them with no alternative


 
And it applies to a redundancy made under the guise of a restructure, but after the redundancy process the restructure didn't happen and someone else is given the exact same post.

I know this because it happened to my team.... and we threatened them with employment tribunal about it (plus we discovered they'd doctored numbers they were using to justify the redundancy).

We used the wrong term maybe? Luckily our HR is exactly the most professionally run


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## Citizen66 (Jan 7, 2014)

It means what manter said: when an employee feels they have to resign due to their employer's behaviour.


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## Puddy_Tat (Jan 7, 2014)

if the employer does the dismissing, then it's not 'constructive dismissal' - it may be 'unfair dismissal' which I think can include dodgy selections for redundancy.  I think there may be a legal term for the latter, or it may just come under 'unfair dismissal'


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## RebelNeutron (Jan 7, 2014)

equationgirl said:


> Did you get a copy of the disciplinary procedure and did they follow it to the letter, as in all the steps with all the right paperwork? If not, you may be able to dispute the warning via the appeals process.
> 
> If you choose to let it stand, keep your head down and don't use the email for ANYTHING not related to work, they'll be watching your account like a hawk.
> 
> It'll soon pass, well done for keeping your job.



I will keep a low profile... the only thing I've raised was that gross misconduct was a bit strong but hey.. it will be gone in 12 months...
Thanks for your support.


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## equationgirl (Jan 7, 2014)

RebelNeutron said:


> I will keep a low profile... the only thing I've raised was that gross misconduct was a bit strong but hey.. it will be gone in 12 months...
> Thanks for your support.


No problem.

Have a look at joining a union.


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## cesare (Jan 7, 2014)

RebelNeutron said:


> I will keep a low profile... the only thing I've raised was that gross misconduct was a bit strong but hey.. it will be gone in 12 months...
> Thanks for your support.


If they *actually* thought it was gross misconduct, they would have summarily dismissed you. Let's see what they say in the final warning - it may well be that you have grounds for appeal.


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