Employment Tribunal - unfair dismissal - student surveys

Euclid_2

Either submitted by bot or flawed software. He was incline to the second as there were many flaws and inaccuracies in the software how it was designed. We rang the helpline several times and they provided some very incompetent responses - for example slow internet connection and repeatedly hit "enter" but it does not fit with the fact that all responses were different.

Euclid_2

happyandcontented wrote: »

Did the IT expert have a theory re the timings of the input?

Undervalued wrote: »

It is not proof in a civil case / tribunal, it is balance of probabilities. They would need to have conducted a reasonable investigation (not a detailed forensic one) in a fair and open minded way that reasonably led them to believe, on the balance of probabilities (i.e 51%), that you committed this misconduct.

If they did that then it is considered fair in law even if they were wrong.

So you need to show that they fell short of that.

"Open minded" was missing during the whole investigation and disciplinary hearings; they dismissed other obvious lines of investigations who in fact did it; they were concentrated (IO mainly) that it was me who was the culprit; even at some point he explicitly required Uni IT not to give evidence as it will contradict his "findings" ...

FBaby

He was incline to the second as there were many flaws and inaccuracies in the software how it was designed

Do you mean as a one off? Because an innacuracy in the design of the software should have affected everyone, not you, as assume everyone is using the same software?

Also, could it be that 0s is anything under 1mn and their argument is that it would only take a few seconds to make any amendments?

The problem is as you've started, if their aim was to get you out, rather than picking up a genuine mistake wishing you hadn't made it so they wouldn't have to consider dismissing you, unless you can indeed prove that all this was orchestrated to get rid of you and that their evidence was nowhere near 51% convincing enough that you made an error, you really don't have a defense. The legal system does not judge unfairness in that regards, only flaws in procedures and not adhering to legal requirements, which you would most likely struggle to prove.

Euclid_2

It is not "on-off" - just it was discovered by my IT's when this happened. Smartsurvey accepted this software problem; the bugs and everything. But they refuse to give a written statement. I made my own test surveys and got the same problem (but knowing what to do in order to get them).

The software measures any sec - so there are surveys done in 1 sec; my fastest time (and my IT's) was 3 sec.

I think that when this started no-one suspected this to be a problem with the smartsurvey software. They just assumed (and wanted it to me) it was me.
Also - as I mentioned - there is a simple Mozilla (and surely other browsers) add-on which allow "spoofing" the IP - i.e. you change your PC IP to whatever you want and when you fill the survey this fake IP appear in the answer as if submitted by the corresponding PC.
I leave my office PC always on because the system is very slow and takes 10 min to start which I don't always have; my previous tabs get lost etc.
So if someone spoofed my office IP (this is not difficult because it is shown in any email header) they can submit an entry as if from my PC (i.e. with the IP address of my PC).

The law allows ruling unfair dismissal if the "evidence" is flawed which is. There are procedural mistakes also which I will bring up. Also not taking into account my spotless and exemplary service and my international reputation as an expert (being invited speaker on several conferences - recent; giving talks in Oxford; doing tons of work in the uni too) is in itself enough to make dismissal unfair.

Undervalued

Euclid wrote: »

It is not "on-off" - just it was discovered by my IT's when this happened. Smartsurvey accepted this software problem; the bugs and everything. But they refuse to give a written statement. I made my own test surveys and got the same problem (but knowing what to do in order to get them).

The software measures any sec - so there are surveys done in 1 sec; my fastest time (and my IT's) was 3 sec.

I think that when this started no-one suspected this to be a problem with the smartsurvey software. They just assumed (and wanted it to me) it was me.
Also - as I mentioned - there is a simple Mozilla (and surely other browsers) add-on which allow "spoofing" the IP - i.e. you change your PC IP to whatever you want and when you fill the survey this fake IP appear in the answer as if submitted by the corresponding PC.
I leave my office PC always on because the system is very slow and takes 10 min to start which I don't always have; my previous tabs get lost etc.
So if someone spoofed my office IP (this is not difficult because it is shown in any email header) they can submit an entry as if from my PC (i.e. with the IP address of my PC).

The law allows ruling unfair dismissal if the "evidence" is flawed which is. There are procedural mistakes also which I will bring up. Also not taking into account my spotless and exemplary service and my international reputation as an expert (being invited speaker on several conferences - recent; giving talks in Oxford; doing tons of work in the uni too) is in itself enough to make dismissal unfair.

Sorry but no, it is not!

As has been pointed out repeatedly, if the employer had reasonable grounds to believe that the misconduct took place then I have no doubt at all that dismissal is within the range of responses an employer may take. It may well be on the harsh side but that does not make it legally unfair. It is not up to a tribunal to substitute their judgement for the employer's.

You need to get some professional advice if you are intending to fight this agains a well resourced employer.

lulu650

Out of interest OP, did you go to appeal? It is best to exhaust all internal procedures before going to an ET.

Can you account for your whereabouts when these surveys were submitted? Apologies if I've missed this somewhere

Euclid_2

Yes, I went to appeal - it was a farce - they didn't discussed any of the ground I was appealing for and just repeated their "arguments".

It doesn't matter where I have been when the surveys were submitted - of course I don't remember as this was more than a year ago.
The problem is that my office computer was always on and whoever submitted it with "spoofing" my office IP address could have done it at any time - first making sure my office PC is on (by "ping"ing it).
For the more problematic survey I remember I had at some point a meeting with the HoD, then I was around on campus, and surely was at some time in my office.
My location is irrelevant as I know I haven't done it, so the only option was by either "spoofing" my office IP address or just even doing it using my username and ID (unfortunately when teaching I inadvertently type my password in the username field so it was visible to more than 200 students).

jobbingmusician

Let's be very clear. The point at issue is NOT whether you did it or not. A tribunal will hinge upon only the following questions.

1. Did the employer follow their own procedures? You have not said anything so far which demonstrates that they did not.

2. Were these procedures fair/ did they follow ACAS guidelines? You have not said anything so far which demonstrates that they were/did not.

3. Would an employer have reasonable grounds to believe that you committed the act of which you were accused?

Number 3 seems to me the only grounds for tribunal. You have stated that the Smartsurvey software faults mean that someone else could have committed this act, and if I understand correctly there are also very suspicious timings in the submissions of the queried surveys.

If my understanding is correct so far, then the only way forward seems to be a witness order forcing Smartsurvey to support your case. You are simply wasting energy looking at other (possible) minor transgressions on the part of your employer. You need to demonstrate that the survey software was faulty AND THAT YOU EXPLAINED THIS TO YOUR EMPLOYERS. If you have NOT explained the faulty software to your employers, then of course it is reasonable for them to assume it works correctly and thus you are guilty as charged.....

Euclid_2

Yes, I have demonstrated that the smartsurvey software is faulty. Order forcing Smartsurvey is not possible as they are an USA situated firm and my employer used the free option (i.e. not a business account). My employer neglected the facts, as the only thing they were interesting in was firing me.

They in parts followed ACAS code of conduct but the weakest point was that they appointed a biased (i.e. no impartial) investigation officer (this is against ACAS guidelines) and also they did not follow ACAS guidelines about taking into account mitigating factor and all that has to be taken into account when making the decision. In fact the whole case was orchestrated by HR (there was a court case about in-proper intervention of HR - this fully applies to my case as they literary dictated the whole process up to specific responses). So, I have serious objections that should be taken into account in a court apart from 3.

jobbingmusician

It is acceptable for a small organisation to appoint an investigating officer who is involved in the disciplinary, so I fear this is a weak point. (Yes, I know colleges are fairly large, but employers don't find it difficult to argue their business case.)

HR are there to advise the employer. You may be making a good point, but I think you are over-stating the importance of a previous court case. (If you are stating that HR had prejudged your guilt before any hearing, and you can demonstrate this, that is of course different.) Otherwise your case simply boils down to whether a reasonable employer would have a reasonable belief that you were guilty. If your employer ignored evidence about faulty software, that is your case.