A friend of mine has just been suspended from work for apparently downloading porn on his work's network. This accusation is completely false (so he tells me and I do believe him) as he know's the company's rules & regs and that the computer network is monitored and that there is software on the system to prevent such access, so wouldn't do anything so stupid - he doesn't even access porn when he's at home.
What he needs now is: a) technical help regarding the Internet - what could cause the pop-ups and links to porn sites appear without his asking for them (which he said he suffered from regularly while using Net search engines). He said the pop-ups only came up when he was surfing the Net at lunch (for private, non-porn related things like shopping & on-line banking) or doing a search for job-related information. Also, what could bypass the company's system and download files to the hard drive (apparently files have been downloaded that are attached to his account but he's not aware of any, other than the work-related ones).
Don't the porn companies create some sort of link to popular/mis-spelt words in search engines like Google, Yahoo! and Ask Jeeves? Is there any proof of this? Net articles, legal cases?
b) legal advice on how to handle the disapliniary case he's got to attend some time next week (he told me but I can't remember the date). What should he expect to encounter, how should he prepare?
c) any links to legal cases of similar/identical such things that have happened before - what the charges were (his is gross misconduct for the accessing of porn), what evidence was submitted by the company and individual being charged, what the outcome was, etc. etc. Is there a precedence out there that he can quote in his hearing to defend himself with? Any evidence to support his innocence?
Please help people as this poor guy is shitting himself. He's been a loyal employee for the company for over two years and has never had a problem like this before! He's always arrived on time, stayed late when asked or needed, taken only a handful of sick days . . . he's pretty much a model employee. He can't believe that this is happening, and frankly, neither can his family or colleges - several have been round to offer support and such.
Thanks in advance everyone!
-AK
-------------------- If you cant convince them, confuse them.
Registered: Apr 2001
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posted
Well, my office has similar safeguards in place. Any site, even pop-ups, ads, etc. that the software deems inappropriate or, in many cases, even shopping-related, are blocked. Period. It won't even let you access the URL, let alone download things from it. If his office has something like this, he shouldn't have been able to get to those sites even accidentally more than once at most, until the software figured out what the site was.
If those images or files were downloaded by his machine, they should be in his temprary internet files cache. If they're not there, they've either been cleared out, or he didn't download them.
I don't know how he would go about proving that he didn't do it. It would seem that the only people who could "frame" him would be the folks in his office's IT department. Usually they're the only ones with access to network stuff. Maybe someone's using his machine without his knowing it.
Registered: Oct 1999
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I want to be clear here, for the sake of my own professional ethics, that I am not dispensing legal advice here.
That said, do IT divisions keep the equivalent of a keystroke tally of when certain files make their way into the system? Or wouldn't his own computer have a tag on the file saying when it was created?
I'm not a licensed lawyer (or barrister as you all call them over there) yet, and I don't know the laws of your jurisdiction, so I can't tell you what the best course of action is. The best advice I can give is get an attorney, which I know is expensive, but might be the only kind of person with the expertise to fight these charges. Specifically, you're going to want to find a solicitor or barrister who specializes in employment law who also has some experience in IT issues.
Good luck.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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My wife used to work for an employment law department in London, I'll get her to look over this thread and see if she has any suggestions. She still has strong links to the department - on a consultancy basis - so might even be able to put you in touch with someone. Which city does your friend work in?
Aban Rune - yeah, that's what I thought, but it looks like that his building uses, for some reason, a seperate network (something to do with the technical side of things) and doesn't have the same protective software as the others.
Been chatting to him over the weekend and while the software isn't there, they are monitored. He's only recently moved there on a part-time basis, still working at his old office that has all the software. The account that he uses used to belong to someone else who's now left. There are also virus's on the PC, but after talking a bit we've come to the conclusion that this wouldn't affect the pop-ups and file access/download issue. Right or wrong?
I've said that he can argue that the company is at fault for not having provided the same level of security as it's main network - an I right? Will that be enough to get him off this/prove it's not his fault?
David Sands - neither of us is technical enough to know. But apparently files have been downloaded, he's still waiting for the evidence to arrive through the post . . . as for the solicitor - he can't have one in this disapliniary meeting, but can involve one if he's found guilty and wants to appeal or if it goes to another stage (i.e. they can't reach a decision on this occasion).
Lee - PLEASE! Any help is greatly appreciated!
-------------------- If you cant convince them, confuse them.
Registered: Apr 2001
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quote:Originally posted by akb1979: The account that he uses used to belong to someone else who's now left. There are also virus's on the PC, but after talking a bit we've come to the conclusion that this wouldn't affect the pop-ups and file access/download issue. Right or wrong?
Well that sort of depends on the virus. I had a client whose PC caught a nasty strain of Backdoor.Hogle that turned his computer into a veritable porn kingdom. Seemed to piggyback on IE and would jack his favorites every time he openned a new browser window. Persistent bugger too. He said he hadn't been looking at pr0n either, but then who would cop to that?
Registered: Sep 2000
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Sorry I couldn't be of more help. I'll say a prayer for your friend.
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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pop-ups and links: Thats actually pretty easy. I've seen a number of malware programs much arround with IE bookmarks, redirect Internet requests, etc. However, downloading porn to directories outside of of the Internet cache is a bit difficult and unlikely.
I'm more interested in what you said about him using an account that was held by a previous employee. (and why a work machine was kept in production despite having viruses on it)
mis-directed sites: Yes, in fact we once had the fun of watching a friend hit sexcrawler in a public venu with a mis-spelling of metacrawler.
key-stroke tally: I would only expect this to occur in the most draconian of workplaces. As for tabs of file creation, yes on the system in question, through simple file-meta data kept by the OS itself.
Registered: Mar 1999
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quote:Originally posted by Mucus: I'm more interested in what you said about him using an account that was held by a previous employee. (and why a work machine was kept in production despite having viruses on it)
Yeah that struck me as a bit strange, but apparently the administrator's PC also has at least one virus on it - I think that's a bit fishy.
quote:mis-directed sites: Yes, in fact we once had the fun of watching a friend hit sexcrawler in a public venu with a mis-spelling of metacrawler.)
Yes that happened to someone else at the company when using Google - they mistyped something and porn sites popped up. They immediately called the IT department, which is what my friend would have done if it had happened to him.
quote:key-stroke tally: I would only expect this to occur in the most draconian of workplaces. As for tabs of file creation, yes on the system in question, through simple file-meta data kept by the OS itself.
The evidence arrived at his house today, in fact I've only just got back from there having visited straight from work. The only thing he's got is a list of site names that have been "accessed", the downloaded stuff is not mentioned anywhere except in the transcript of his interview with the HR Director when she told him. He's going to call her tomorrow after he's read through it again and taken notes.
Balaam Xumucane - that sounds like a real bastard of a virus! Not sure what virus's are on his PC, he never took a good look. But he'll certain raise this in the meeting (once I tell him) - thanks!
David Sands - he's not religious, but right now he'll take any help that he can get. Thanks!
Thanks all round! Will be back when I know more.
-AK
-------------------- If you cant convince them, confuse them.
Registered: Apr 2001
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Well my friend had his meeting today. It did not go well.
The HR Director is out for his blood and he's really depressed about this. She now wants to involve the head of the IT department to look into this in greater depth. The issue is now what caused the computer to access the data - the HR Director thinks that it can be only him, which he denies.
He's thrown all of his evidence into this, but to no avail! He feels as though no matter what happens, his fate was decided weeeks ago - guilty: fired due to gross misconduct.
She's a real bitch! What can he do!? Can he call her and say "you've treated me like shit so shove the job where the sun doesn't shine!"?, or would he then be in breach of contract?
-------------------- If you cant convince them, confuse them.
Registered: Apr 2001
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How soon will the IT department report with its findings?
-------------------- "Warfare is the greatest affair of state, the basis of life and death, the Tao to survivial or extinction. It must be thoroughly pondered and analyzed."
"...attaining one hundred victories in one hundred battles is not the pinnacle of excellence. Subjugating the enemy's army without fighting is the true pinnacle of excellence."
-Sun Tzu, The Art of War, 6th century B.C.E.
Registered: May 1999
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posted
Ok, information on the law (This is Lee's wife!):
1. Your friend should have been given the opportunity to take someone with him to the meeting. Refusal to allow his representation or to take someone with him to a formal disciplinary is a clear breach under the Employment Rights Act
2. If he was not alowed to take a solicitor then he should have been informed, in writing, that he could have a friend or union representative present. This is his legal right.
3. He needs to get a copy of any policy on which the company is replying in relation to internet use/downloading of porn or anything else for that matter.
4. If there is a policy, he needs evidence that this policy was available and published to all employees. If it is not a published policy then the company cannot rely on it as the employee needs to be 100% aware that the policy exists. If they don't or there is no policy, then actions cannot be brought under it and employtees cannot abide by something they no nothing about!
5. If there is no policy, then they are, by sacking him (if this is what they have done), in breach of his contract (I think). They have already breached his rights under disciplinary procedures and Fairness at Work Act.
6. I don't think you will find any case law on this in relation to disciplinary proceedings but you might find something in relation to any employment tribunal which has been decided and decisions are public so anyone can get hold of them.
7. If he has been dismissed, and it looks like it is unfair, i.e. not allowed representation or to take legal advice (which they would have had to pay for in the first instance which is probably why they refused his legal representation), he needs to file an IT1 at the employment tribunal within 3 months less 1 day of the act (unfair dismissal or, possibly in this case also constructive dismissal). He can do this himself by the internet and if he searches for "employment tribunals" on google, he should find a site where he can lodge one. This is free.
8. He may need to get a lawyer. Sometinmes by filing an IT1 this is sufficient to get the company talking again as they receive a copy and are asked to file a response etc which starts their legal fees rolling. They sometimes then offer to settle "out of court" so to speak to save face and get you out of the way! Lodging of an ET1 is also public and there are people out there who look up companies who are being sued by employees and phone them to ask why they are being so sued! Employers don't like the publicity!
9. He can act for himself with no cost. ET's are meant to help people!
10. I can assist wherever possible and also recommend some excellent lawyers with the best reupation in this field in London. They are trade union lawyers and therefore do not cost the earth. If it goes to Tribunal and settles before hand, he can include in any settlement, his legal fees.
11. I will try and look up some case law for you and get the Acts sorted out on which he can rely etc
Hope this helps
Kate (Lee's wife)
Registered: Jul 2000
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![[Eek!]](eek.gif)
This accusation is completely false (so he tells me and I do believe him) as he know's the company's rules & regs and that the computer network is monitored and that there is software on the system to prevent such access, so wouldn't do anything so stupid - he doesn't even access porn when he's at home.![[Confused]](confused.gif)
Is there any proof of this? Net articles, legal cases? ![[Smile]](smile.gif)
![[Frown]](frown.gif)
But apparently files have been downloaded, he's still waiting for the evidence to arrive through the post . . . as for the solicitor - he can't have one in this disapliniary meeting, but can involve one if he's found guilty and wants to appeal or if it goes to another stage (i.e. they can't reach a decision on this occasion).![[Big Grin]](biggrin.gif)
![[Razz]](tongue.gif)
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