Company trying to deduct money for perceived indescretion

[Trilogy2k]

Hi All,

 

At my wits end on this and totally stressing over the whole thing. Hopefully someone on there with phone experience/employee law can give me a bit of advice!

 

Basically my company are wanting to give me a bill and a written warning as a result of a forthcoming disciplinary hearing over a company mobile phone bill that they said I must have known about and done something to instigate.

 

It started back in October when I received an email from my manager telling me the finance department had picked up on some massive data charges with EE (300-400mb) which in itself isn't large but as our company doesn't have any data packages in place as part of the phone contract they've been billed approximately £1000.

 

My phone is a very basic Nokia Asha 300 that has bluetooth capability and 3G/GPRS. I've had it for over 3 years in my two previous vehicles (Skoda Octavia and Audi A4) without incident, but recently in July I had my replacement car, a Superb Elegance. 

 

I have a personal phone (Samsung smartphone) that I also use for navigation purposes as I find the inbuilt one a bit sluggish and doesn't give me alternative routing options based on live traffic situations, and this has been set as a profile in my car as a standard bluetooth connection, so all data is directly dragged through the standard 3G/GPRS network.

 

My work phone is connected via 'Premium' bluetooth, and so under the rsap profile becomes the car and I have access to text messaging and increased range through the use of the car antenna etc.

 

I know the car has possible wifi hub connectivity, however I have never turned this on as don't need an access point and my work phone is not Wifi enabled. 

 

My company is trying to imply that as my own phone and work phone are somehow connected together via the car then whatever I may have been doing on my personal phone would have accrued data usage on my company phone.

 

As far as I'm aware this can't happen, and the phones are unaware of each other as they have never been paired by bluetooth.

 

I've spoken to Skoda direct who have confirmed in writing that connecting my company bluetooth through the car wouldn't directly incur any charges and recommend I take it up with the phone provider, however I would like some second opinions.

 

The odd thing is that although the pairings were made in July on the first day of delivery of the car, I didn't start getting any data bills until September, a few weeks afterward.

 

I've since spoken to Nokia who have confirmed in writing that I would have to change my settings (buried deep in the menus) to 2G from the current default setting which is Dual 3G/GSM.

they've told me the possibility of accessing the internet is very high and that there may have been background applications downloading without my prior knowledge.

 

I've checked the user guide several times and it makes no reference asto how to do this myself (or even having to!), however there is mention to receiving periodic setting text messages from the provider that could possibly affect the connectivity. I've trawled through my text inbox and found a couple of the more recent ones but due to a complete cull in June I can't see anything before that time.

 

I know the company cannot take deductions from my salary without my prior agreement or stipulation in my contract (which is not the case), and have initially told me to repay every month over six months and take the written warning into the bargain.

 

I fully believe I've not been wilfully negligent and in breach of my T's and C's on my employment contract.  I feel victimised, stressed and that the company/employee relation has broken down as a consequence.

 

The disciplinary hearing is tomorrow morning.

 

Any thoughts, comments etc would be gratefully received.

 

Thanks

Dean

Edited 24 November, 2014 by Trilogy2k

[BossFox]

I am confused how they have stated it's a written warning if you haven't had the disciplinary hearing yet.

 

They are supposed to investigate, take a balanced view and then decide on an outcome.

Have you already had a hearing/meeting where it's all been discussed and they have already decided (after listening to all of your information) that they believe you did it willfully?

 

If so, what is the meeting for tomorrow?

Just a formal way to give you the warning?

 

http://www.acas.org.uk/index.aspx?articleid=2177

[Aspman]

Normally you have to have a special contract to allow a phone to act as an internet modem for other devices (tethering).

 

So the likelyhood is that any billing that has occurred has come from the phone.

 

The Asha is a pretty low rent smart phone however it wopuld be quite feasible for it to connect to the internet over 3G and down load the quantity of data that has been suggested.

 

However I would ask the questions -

 

• Has the company undertaken any investigation into what caused the bill?
• Was the phone configured in such a manner to prevent unexpected bills i.e. 3G disabled.
• Did the phone include preinstalled software that may result in accidental bills?
• Have you been provided with any advice/training on how to use the phone, were you explicitly told not to use it for data?
• Has the company undertaken any investigatory action with the mobile phone company to ensure the bill is correct?

 

I've no evidence but I'd make the following suggestions -

 

1. It is likely that the phone is the source of the bill
2. It's more likely than not the bill is correct
3. It's possible that you've run up the bill deliberately or accidentally
4. It's also possible the phone has run up the bill itself i.e. by downloading updates for the preinstalled applications.

 

In the event of 3 then you start asking question about training and company policy on using the phone.

In the event of 4 then you argue that the phone was not fit for purpose and you should have been provided with an appropriate mechanism to update the phone (i.e. wifi).

 

 

BUT, lots of smaller businesses don't think like that so you might end up putting these arguments to a tribunal before you get it sorted.

Edited 24 November, 2014 by Aspman

[Trilogy2k]

They initially sent me a letter on the 13th November telling me  that 'after intensive investigation between the network provider and Skoda and simulating what we perceived to have happened all facts point to employee fault and manual intervention that started the issue'

 

They gave me a deadline of November the 20th by which time I had to provide 'real evidence'.

 

I then wrote a letter to them the next day (14th) pointing out that the company had failed to invite to to a formal disciplinary hearing, with the usual rights of accompaniment, and that as stipulated in point 13 of the Employment Rights Act (1996) I'm protected as an employee from the right not to suffer unlawful deduction of wages etc. (there is nothing in my contract to state this is ok).

 

On the 20th I received a letter asking me to attend a hearing on the 25th at 11am.

 

This afternoon, I received another notification (by email), telling me the hearing had been postponed and would now take place on the 4th December!!

 

I've not gone back to them yet. I was psyched up for the meeting tomorrow after a week of sleepless nights, and lack of appetite.

 

This is killing me!!

[Trilogy2k]

In answer to your points;

 

• Has the company undertaken any investigation into what caused the bill?  I think our office manager called EE, or the intermediary company that handles our contract on behalf of EE to qualify the cost, I've done all the other investigation myself without help with both Skoda and Nokia.

• Was the phone configured in such a manner to prevent unexpected bills i.e. 3G disabled. 3G was enabled, however there is no easy way to see this until you burrow down into the menus. The official user guide in fact makes no reference to being able to do this, and as I said I've had the handset for over 3 years without incident.
•  
• Did the phone include preinstalled software that may result in accidental bills? - I'm unable to tell, have not been advised either way.
•  
• Have you been provided with any advice/training on how to use the phone, were you explicitly told not to use it for data? - No training or advice has been given. The company policy document only makes specific relation to Iphone devices. The iphone is our standard phone across Europe. Only the UK have these old handsets. The policy document also states that it must not be used to incur data charges (so I was aware of the fact that I should avoid any incidence).
•  
• Has the company undertaken any investigatory action with the mobile phone company to ensure the bill is correct? - I believe that refers to the first point, when they contacted EE over the bill amount.  I would fully expect the bill to be correct in the eyes of EE. As far as I'm aware there's been no investigation by the company as to the content of the data.

Thanks

[Aspman]

Phone would probably show either a 3G/H or H+ next to the signal bars if it was on a 3G network.

2G networks show up as G or E.

 

Again unless you use data 3G isn't needed.

 

You've been supplied with a phone that differs from the company standard phone which has a capability to run up an unlimited bill with no training and no advice.

The phone is standard and not managed by the company therefore the company has no control over the action that can be carried out by the phone.

 

The company should be requesting from EE the  record of the data that was uploaded. i.e. if it shows 400Mb of you accessing Facebook then you've probably got problems but if it shows 400Mb of updates from Google then it's the company's problem.

 

Does the company send you email to the phone?

 

Any smartphone will access data over 3G unless they are configured not to. How much is hard to tell.

 

Argument will probably rest on them having given you a phone that can access the internet in a in an accidental way.

 

Good luck.

[KenONeill]

So your employer bought a "no data" package, but omitted to take "reasonable measures" (like disabling 3G) to prevent the phone downloading data without your knowledge. I don't actually think they have a case for a disciplinary even if they have a case for requiring you to repay the costs.

[Coops]

Had a similar incident with one of my employees - I don't regularly check the phone bills but my accountant informed me of some large charges in a particular week. Once I'd established the phone in question (and thus the employee), I then didn't jump to conclusions and blame the employee, I went off and investigated the situation. It surrounded a £2.5k overcharge for data.

 

Cut a very long story short - it was Vodafone's error, they hadn't setup the data plan correctly when we switched from BB to Nokia. Their error, they refunded, no employee disciplined.

 

 

In the OP's case, as Ken has stated, they purchased packages without data plans, therefore they will get high charges as a result.

[Trilogy2k]

In answer to Aspman's two points - I work for a global company in the electronics sector. We have around 20,000 employees. I perhaps could have expected bad practice from a small organisation but this organisation is huge.

 

No, only users of iphones have access to the company email system via the 'Lotus Notes Traveller' app. An app that would never be able to run on this device.

[gadgetman]

The network should be able to give your employer a complete breakdown of where the traffic has been going.

Being a smartphone I assume it's a tile on the main screen updating weather, news or your location for maps.

Firstly you need to calm down. Easy enough to say but trust me it WILL be used against you either now or in the future.

You need to respond in bullet points instead of giving them all the ammo to hang you out to dry. Respond only as much as is necessary, save everything for your meeting. Don't ask questions, don't demand anything.

Whoever deals with your phones should have disabled the Internet given you have no data plan, or advised you how to do this.

I'd take steps yourself to disable all data connections except Wifi and bluetooth. And point this out in your MEETING that you took these steps without actually being told to do so by your employer or network.

keep any information you've got from official sources such as Nokia and Skoda to yourself for now.

At the meeting, advise them you don't see this as your issue but theirs and the networks for incorrectly configuring your device before giving it to you.

Again KEEP CALM! And only respond calmly during the meeting. If you feel yourself boiling over, ask for a short break. And only take in someone as a witness you 100% trust to take notes for you.

Been in your shoes for something different, so drop me a pm before the meeting if you like.

[loskie]

If you are not in a Union try Citizens Advice or ACAS for advice.

[Furbytom]

Sounds like your companies argument is based on an assumption that your personal phone has somehow been using data via your work phone through the car and racking up the bill. Skoda have confirmed for you that this isn't possible so I don't see how the company has a leg to stand on. I think you will be fine!

[KenONeill]

The network should be able to give your employer a complete breakdown of where the traffic has been going.

Being a smartphone I assume it's a tile on the main screen updating weather, news or your location for maps.

Firstly you need to calm down. Easy enough to say but trust me it WILL be used against you either now or in the future.

You need to respond in bullet points instead of giving them all the ammo to hang you out to dry. Respond only as much as is necessary, save everything for your meeting. Don't ask questions, don't demand anything.

Whoever deals with your phones should have disabled the Internet given you have no data plan, or advised you how to do this.

I'd take steps yourself to disable all data connections except Wifi and bluetooth. And point this out in your MEETING that you took these steps without actually being told to do so by your employer or network.

keep any information you've got from official sources such as Nokia and Skoda to yourself for now.

At the meeting, advise them you don't see this as your issue but theirs and the networks for incorrectly configuring your device before giving it to you.

Again KEEP CALM! And only respond calmly during the meeting. If you feel yourself boiling over, ask for a short break. And only take in someone as a witness you 100% trust to take notes for you.

Been in your shoes for something different, so drop me a pm before the meeting if you like.

Further to this, having a colleague (or union rep if applicable) in the meeting as your representative is your legal right. If they try to refuse you this, the entire proceedings automatically become legally flawed.

[Aspman]

Union rep can speak on your behalf, work colleague cannot.

 

If you get a rep  don't let them say anything you're not happy with, they don't always do their members any favours and can sometimes be more interested in grinding their own grievances with management.

 

Big company should be easier to be logical with then a small one. They have resources and skills to appropriately configure any equipment you are provided with and should also have policies and standards in place for their use.

 

I would check back to see if there is any mandatory training you have missed.

Edited 25 November, 2014 by Aspman

[maxp]

sorry to go off topic,  @trilogy2k, you say 

"I know the car has possible wifi hub connectivity, however I have never turned this on as don't need an access point and my work phone is not Wifi enabled. "

 

How do you turn set the car "wifi hub connectivity". I have a phone that connects via rsap

 

regards

[Trilogy2k]

As far as I have read the device isn't classified as a Smartphone. I'm not aware of it running specific apps like Google but it must be doing something in the background! 

 

I'm not in a union so have only a colleague to rely on.  My hearing should have been this morning but has been 'postponed' until the 4th December whilst they 'consult' with an outside HR company.

 

Highly unfair in my mind as I was prepared to go in there today with my evidence. Now it seems (although I can't prove it) that they are now seeking more advice.

 

They also sent me a copy of their evidence by email together which along with a bunch of the scanned original email traffic contains detail given to them by a colleague who has the same phone and same car and therefore proves that some kind of manual intervention must have taken place by myself to effect a data download through the car.  How they can actually prove this however remains a mystery to me..

 

They're also asked for a copy of my evidence to which I have initially replied, saying that I would have done during the hearing today, but will not await until the rescheduled hearing date. Their response to this was that 'it is upto me to provide the evidence which will act on my behalf and they advise that this is my best interest, lest they be forced to make a decision based on the information before them only'.

[Coops]

The company is bringing the disciplinary against you and therefore it is standard practice for them to supply the evidence/hearing documentation in advance prior to the hearing. When the hearing is called, both parties have exactly the same information and that is discussed. If you then bring additional evidence (maybe to counter their's) that will also be discussed during the hearing. However in such a serious disciplinary (potentially misconduct or gross misconduct) then the company should adjourn for at least 24 hours to consider any new information and to consider appropriate action.

 

This is how we operate and it is fully documented in the appropriate policy. Do you have such a written policy?

[Trilogy2k]

sorry to go off topic,  @trilogy2k, you say 

"I know the car has possible wifi hub connectivity, however I have never turned this on as don't need an access point and my work phone is not Wifi enabled. "

 

How do you turn set the car "wifi hub connectivity". I have a phone that connects via rsap

 

regards

If you have the same spec car as mine from I think 2013 onwards I think you should have this mentioned in your user manual, page 127.

 

you can also view the latest manual here;

 

http://ws.skoda-auto.com/OwnersManualService/Data/en/Superb_3T/05-2014/Manual/Superb/B6_Superb_OwnersManual.pdf

[Trilogy2k]

The company is bringing the disciplinary against you and therefore it is standard practice for them to supply the evidence/hearing documentation in advance prior to the hearing. When the hearing is called, both parties have exactly the same information and that is discussed. If you then bring additional evidence (maybe to counter their's) that will also be discussed during the hearing. However in such a serious disciplinary (potentially misconduct or gross misconduct) then the company should adjourn for at least 24 hours to consider any new information and to consider appropriate action.

 

This is how we operate and it is fully documented in the appropriate policy. Do you have such a written policy?

We have a company employee handbook that details the disciplinary procedure but after reading it twice can find no reference to it mentioning that as an employee I have to submit evidence prior to any disciplinary hearing.

 

If it had said that then of course I would have supplied it. If I however then choose not to disclose my evidence before the hearing then I guess I may run the risk of having a adjournment, then the matter being referred to a higher manager (as detailed in the handbook).The only person above my line manager is the VP!

[Coops]

We have a company employee handbook that details the disciplinary procedure but after reading it twice can find no reference to it mentioning that as an employee I have to submit evidence prior to any disciplinary hearing.

 

If it had said that then of course I would have supplied it. If I however then choose not to disclose my evidence before the hearing then I guess I may run the risk of having a adjournment, then the matter being referred to a higher manager (as detailed in the handbook).The only person above my line manager is the VP!

 

Who is chairing the hearing? Your line manager? Who has investigated it?

 

Chair and investigating manager should be different (where practicable). Likewise appealing manager (should you appeal) should be different and one level different (higher)

[Trilogy2k]

Who is chairing the hearing? Your line manager? Who has investigated it?

 

Chair and investigating manager should be different (where practicable). Likewise appealing manager (should you appeal) should be different and one level different (higher)

My LM is chair and the office manager is the witness, although I believe their evidence collection was/has been done by the latter. Again how this is proved I don't know?

[loskie]

Have you taken legal advice?

Now is the time.

Not advice off well meaning but non qualified forum bods.

[matt_theforce]

Something similar happened to me about 8years ago.

 

I had a company mobile phone for call out purposes (no data) & work decided to trial a smartphone. A phone was given to 6 of us and we were told to configure email & IM & then trial it for 6months. After 3 months use I was called into HR and given a written warning for using my phone for private use and extortionate data charges, none of the other 5 colleagues were given a warning over their phone charges & the bill was shown & given to me during the meeting, I couldn't proove that I hadn't used it for personal use but at the same time I couldn't proove that I had, I tried calling Vodafone about the bill after the meeting but they were unhelpful as I wasn't the contract holder.

 

Work docked my pay to cover the costs of the phone bill over 3months, totalling £1500!

 

After the meeting with HR & my manager, I reverted back to my old phone but kept the smartphone locked in my drawer, during the next 3months I was called into HR again and given another warning as I wasn't contactable via IM when on-call!

 

This was a nationwide oraganisation with over 10,000 employees, most of the IT team had come from the same previous employer and those who weren't part of the 'clique' were bullied and disaplined until they left, most of HR were also from the same previous employer & in relationships with some of the IT team making it difficult to argue my points. 

 

After the 6month trial ended & I handed back my smartphone I saw my manager putting her SIM card into the phone & then putting it back into the box ready to be returned to Vodafone, this got me thinking & after asking around I found out the other 5 team mates were all given a phone + SIM card, yet I was only given a phone! 

 

I eventually managed to get evidence from the accounting team (difficult without my manager finding out) & Vodafone that my current contract wasn't setup for data, hence the extortionate charges.  I ended up waiting in the car park one morning waiting for the North of England's Area Manager (My managers boss's boss who was above all those in the 'clique') to arrive so I could ask him for a meeting to discuss issues I have with my manager & her boss & also HR.

 

It took another 2months before I was finally re-embursed the full amount + 2days extra a/l, both my manager &  her boss were given warnings and continued to be my manager etc etc. 

 

I left the company shortly afterwards, without a job togo to as I couldn't cope working there and was becoming more & more ill, depression & suicide thoughts were becoming my life :(

 

Anyhoo, slightly different situation to yours, but, keeping calm and being methodical/accurate with your responses will help, also take someone with you into the meeting (not a mate) but someone who is regarded highly throughout the company/team etc who isn't biased towards either side.

 

I wish you well with your meeting.

 

Matthew

[Macdemon]

Dean.

 

The company CANNOT undertake any disciplinaries (stupid spell checker) until full and thorough fact finding measures have been completed.

 

If they go straight into a disciplinary, then they are not in position of all the facts, and any course of action they take may leave them open to being sued by yourself.

 

Chat with your local union steward in the issue, and take a colleague with you into the meeting.

[Aspman]

TBH even companies with large HR teams **** up the disciplinary process more often than not.

 

But it's not a court of law so the usual rules over evidence don't apply.

 

Union rep is a good place to start since it seems from the off that the process is not correct here.