Unfair dismissmal - advice needed

Geeders

Novice Member
Looking for a bit of advice with regards to employment law for unfair dismissal - as my missus is current going through the process.

Without going into to much detail, she worked in a care home as a senior member of staff, and it appears she has been held accountable for the actions of other staff members during an incident – where in fact there was a lack of training/action plan for an incident of that particular nature.

In summary, my missus received notice of suspension which culminated in instant dismissal after an investigation. She currently isnt in a union, but as far as I can understand the process was followed correctly.

We are going through the internal appeal process and I am trying to get some advice over where she stands in the outcome that the appeal is overturned by the internal process.

She doesn’t want to return to work and has since found another job, but I’m not sure if she would be entitled to backpay for the period of dismissal at the very least – or any further compensation on top.

I have been reading up on the process of an employment tribunal in the event that the appeal is unsuccessful. I have a basic understanding of that process, but I need some clarification on the first stage of appeal.

Just to clarify I’m not looking at this as a way of making money, but as a result of the whole incident my missus doesn’t want to work in care again and has had to take a lower paid job just to pay the bills.
 

wookielover

Well-known Member
What actually happened ? why do you think it was unfair ?
 

nheather

Distinguished Member
Sounds like she was a manager or supervisor - unfortately along with the benefits of better pay etc. comes the responsibility of accountability of the your team.

Anyway, as for backpay, I would imagine she is entitled to payment upto the day in which she was finally dismissed and left the company.

Any time she was on gardening leave (or equivalent) whilst the decision was considered should be paid, unless her contract specifically says otherwise (and even if it does it may not be enforceable).

Cheers,

Nigel
 

jdevil

Distinguished Member
The Acas Helpline is the place to go for both employers and employees who are involved in an employment dispute or are seeking information on employment rights and rules. The Helpline provides clear, confidential, independent and impartial advice to assist the caller in resolving issues in the workplace.

Call the Helpline on 08457 47 47 47.
They will help you out!
 

nheather

Distinguished Member
So when did they stop paying her?

At the point of suspension?

Or when she was dismissed after the investigation?

If the latter then I think she is all paid up. If the former then I think she has claim to payment during the investigation.

The appeal is seperate, you wouldn't expect to get paid during that, though if she won and returned to work then they should pay for the appeal period aswell.

Why is she appealing if she doesn't want the job back or compensation? - not saying she shouldn't but just wondering what is the purpose.

I agree with the ACAS advice though - best go to the experts.

Cheers,

Nigel
 

Geeders

Novice Member
What actually happened ? why do you think it was unfair ?

Sorry, I don’t want to go into too much detail but the actions of the other staff weren’t even particularly ‘bad’ – nothing abusive in nature or that caused injury, but still deemed inappropriate.

Sounds like she was a manager or supervisor - unfortately along with the benefits of better pay etc. comes the responsibility of accountability of the your team.

Anyway, as for backpay, I would imagine she is entitled to payment upto the day in which she was finally dismissed and left the company.

Any time she was on gardening leave (or equivalent) whilst the decision was considered should be paid, unless her contract specifically says otherwise (and even if it does it may not be enforceable).

Cheers,

Nigel

She was suspended for a month and did receive pay for that. The decision was reached on the last day of the month, so pay stopped at that point.

In 10 years service she had an exemplary work record and was well praised by everyone. The accountability for other staff members does go so far, but the fact that there was a lack of training and plans in place, in my opinion takes precedent over her personal responsibility.

They will help you out!

Thanks – I had spoke to them briefly a few weeks ago and they advised to ring once the appeal letter had been sent back – which is happening today
 

Geeders

Novice Member
So when did they stop paying her?

At the point of suspension?

Or when she was dismissed after the investigation?

If the latter then I think she is all paid up. If the former then I think she has claim to payment during the investigation.

The appeal is seperate, you wouldn't expect to get paid during that, though if she won and returned to work then they should pay for the appeal period aswell.

Why is she appealing if she doesn't want the job back or compensation? - not saying she shouldn't but just wondering what is the purpose.

I agree with the ACAS advice though - best go to the experts.

Cheers,

Nigel

Aside from financial compensation, she just really wants to clear her name. Whilst she doesn’t want to work in care at the moment – if the incident is reported to the governing body she would have a ‘black mark’ against her name.

As mentioned she was paid for a month whilst suspended, but this stopped at the point of dismissal.

I’m going to give ACAS another ring. The main question I’m trying to answer is if the decision is overturned and they offer say a months pay and an offer of the job back– whether we could be entitled to more compensation by taking it to an employment tribunal or even if we could. If it’s overturned can it even be taken further?

Thanks to everyone for the advice so far – I’ll give ACAS a ring and see what they advise.
 

Liquid101

Distinguished Member
In 10 years service she had an exemplary work record and was well praised by everyone. The accountability for other staff members does go so far, but the fact that there was a lack of training and plans in place, in my opinion takes precedent over her personal responsibility

As a manager it is your responsibility to ensure those staff under your supervision have the necessary training to do their jobs. Even if it is not your responsibity to deliver or organise that training. It is also the managers responsibility to ensure plans and documentation are in place, even if it is not their responsibity to create those plans.

Obviously i don't know the full details of this case. However, generally many managers see their role as one of control and discipline, when it should one about facilitation and guidance. As a manger I spend more time making it possible for people to do their work, rather than actually having to tell them what to do.
 

nheather

Distinguished Member
As mentioned she was paid for a month whilst suspended, but this stopped at the point of dismissal.

So there is no backpay owed.

So as you say it really comes down to whether she wants to pursue them to clear her name and get compensation.

Check with ACAS to see if they think she has a case.

Cheers,

Nigel
 

MikeP1

Novice Member
I've had a friend who was dismissed and then appealed. In his case they simply decided his past service meant they would only deduct pay for the suspension period and allow him to return.

Unless the appeal finds there decision was wrong in the first place I don't think there is any hope of financial offers being made.

But as the others have said I'm not expert and only ACAS or an employment lawyer can give solid advice. If you haven't it might be worth asking for a free consultation with an employment lawyer.

All the best.
 

SkilledNutter

Well-known Member
Did she highlight the training issues before or after the incident? If before does she have a record of that? From what you have said it does sound like she has not held up her responsibilities.... Unless she did highlight these issues and then her senior management would be at fault not her.
 

Geeders

Novice Member
As a manager it is your responsibility to ensure those staff under your supervision have the necessary training to do their jobs. Even if it is not your responsibity to deliver or organise that training. It is also the managers responsibility to ensure plans and documentation are in place, even if it is not their responsibity to create those plans.

Obviously i don't know the full details of this case. However, generally many managers see their role as one of control and discipline, when it should one about facilitation and guidance. As a manger I spend more time making it possible for people to do their work, rather than actually having to tell them what to do.

She was a senior support worker/team leader for the general running of shifts, and worked under a manger and assistant manager in the same home.

It’s difficult to explain without going into actual details, but in summary a system should have been implemented following a previous incident – which wasn’t her responsibility to implement.

I used to actual work at the same home, so have a pretty good understanding of the general workings and procedures. There is a lot of ‘buck-passing’ that does occur and on this instance my missus has been made a scapegoat.
 

Geeders

Novice Member
Did she highlight the training issues before or after the incident? If before does she have a record of that? From what you have said it does sound like she has not held up her responsibilities.... Unless she did highlight these issues and then her senior management would be at fault not her.

The training issues were highlighted previously and she does have record of that. The issue wasnt raised by her as she wasnt directly involved in the previous incident.
 

SkilledNutter

Well-known Member
The training issues were highlighted previously and she does have record of that. The issue wasnt raised by her as she wasnt directly involved in the previous incident.

Would definitely pursue it legally then, could be cheaper for the company to settle then to fight it.

Good Luck :)
 

nheather

Distinguished Member
Actually, thinking about it, I don't see how they could have dismissed based on what we have heard (appreciate you don't want to discuss the details though).

You can't (or it is very difficult) to dismiss someone for doing their job badly. You can issue a formal warning, and identify areas for improvement, training needs etc. but there needs to be a succession of warnings to be able to dismiss someone.

There are grounds for summary dismissal but these are usually related to criminal activities - theft, bullying, abuse, drugs, assault etc.

If this is the first offence then I think she has a very good claim for unfair dismissal - seek advice from ACAS.

How long has she been there - was she still in a probation period?

Cheers,

Nigel
 
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Geeders

Novice Member
Actually, thinking about it, I don't see how they could have dismissed based on what we have heard (appreciate you don't want to discuss the details though).

You can't (or it is very difficult) to dismiss someone for doing their job badly. You can issue a formal warning, and identify areas for improvement, training needs etc. but there needs to be a succession of warnings to be able to dismiss someone.

There are grounds for summary dismissal but these are usually related to criminal activities - theft, bullying, abuse, drugs, assault etc.

If this is the first offence then I think she has a very good claim for unfair dismissal - seek advice from ACAS.

How long has she been there - was she still in a probation period?

Cheers,

Nigel

As mentioned she had been there for 10 years with an exemplary record.

The crux of the incident was that physical intervention was used by someone else. I must re-iterate that no harm or injury occured to the service user.

The actual incident was so minor that my missus wasnt aware it had occured. It may be that they believe she was trying to cover up the incident, but she wasnt aware it had even occured.

I wish i could give more details that would clarify it. Suffice to say, i believe she could have done very little differently - based on my previous experience from working there.
 

shahedz

Distinguished Member
Would definitely pursue it legally then, could be cheaper for the company to settle then to fight it.

Good Luck :)

That's what annoys me about claims ( This is no reflection on the OPs predicament ) . This I believe led to the rise of the "no win no fee"- the fact it's cheaper to settle than fight , which had led to increased claims , premiums etc.
 

unique

Moderator
what was she actually dismissed for? what did the written notice of termination of employment say?

what did the letter inviting her to the disciplinary state as the reason for the disciplinary hearing, and what did it state could be the likely outcome of the hearing?

if she was dismissed for exhausting the disciplinary process, or for gross misconduct, was the nature of the complaint listed in the disciplinary procedures as an offense serious enough to be considered gross misconduct?

how long has she been employed continuously by her current employer, and does she have any longer continuous service via TUPE?


generally disciplinary hearings and tribunals revolve around the correct procedures being followed at the disciplinary stage, but also to ensure a fair decision was reached. a long length of service can have a bearing in some matters as 10 years of good service without problems can mean it may be unfair to dismiss someone for a technicality, but not if it was a case of theft or violence or endangering someones health or safety

IF she did win her appeal, realistically if they did pay her for the full period (ie. between dismissal and re-engagement), it would only be a few weeks pay, but if she opted not to return i suppose as she would have been re-engaged she would have to tender her notice and follow the usual notice period which would usually require working her notice unless she can agree otherwise with her manager, which goes back to why would she appeal if she didn't want to keep on working. if she won her appeal she may be entitled to return to her job but not a payment in lieu instead, that would have to be negotiated as she wouldn't have a statutory right to such a payment

it's a tricky one to answer without knowing more detail, thus ACAS is your best bet as they are free and offer a confidential and professional service with experienced and qualified staff
 

Geeders

Novice Member
what was she actually dismissed for? what did the written notice of termination of employment say?

what did the letter inviting her to the disciplinary state as the reason for the disciplinary hearing, and what did it state could be the likely outcome of the hearing?

if she was dismissed for exhausting the disciplinary process, or for gross misconduct, was the nature of the complaint listed in the disciplinary procedures as an offense serious enough to be considered gross misconduct?

how long has she been employed continuously by her current employer, and does she have any longer continuous service via TUPE?


generally disciplinary hearings and tribunals revolve around the correct procedures being followed at the disciplinary stage, but also to ensure a fair decision was reached. a long length of service can have a bearing in some matters as 10 years of good service without problems can mean it may be unfair to dismiss someone for a technicality, but not if it was a case of theft or violence or endangering someones health or safety

IF she did win her appeal, realistically if they did pay her for the full period (ie. between dismissal and re-engagement), it would only be a few weeks pay, but if she opted not to return i suppose as she would have been re-engaged she would have to tender her notice and follow the usual notice period which would usually require working her notice unless she can agree otherwise with her manager, which goes back to why would she appeal if she didn't want to keep on working. if she won her appeal she may be entitled to return to her job but not a payment in lieu instead, that would have to be negotiated as she wouldn't have a statutory right to such a payment

it's a tricky one to answer without knowing more detail, thus ACAS is your best bet as they are free and offer a confidential and professional service with experienced and qualified staff

The reason for dismissal was given as gross misconduct.

Again i wish i could give more details, and appreciate it is difficult to comment on without knowing, but if I put aside any biase i might have and it was someone else, I would have exactly the same opinion - that the actual reason stated isnt grounds for dismissal - a written or verbal warning at the very most.

Thanks for clarifying that she wouldnt have a statutory right for payment - thats what i'm looking to confirm.

She had considering leaving and pursuing a different career and challenge for the past year anyway. This is part of the reason for not wanting to return, but also because of how she has been treated during this process.
 

unique

Moderator
The reason for dismissal was given as gross misconduct.

Again i wish i could give more details, and appreciate it is difficult to comment on without knowing, but if I put aside any biase i might have and it was someone else, I would have exactly the same opinion - that the actual reason stated isnt grounds for dismissal - a written or verbal warning at the very most.

Thanks for clarifying that she wouldnt have a statutory right for payment - thats what i'm looking to confirm.

She had considering leaving and pursuing a different career and challenge for the past year anyway. This is part of the reason for not wanting to return, but also because of how she has been treated during this process.

did the letter inviting her to a disciplinary hearing state that the nature of the investigation was relating to an issue considered gross misconduct in the disciplinary procedures and warning that the possible outcome of the hearing may result in instant dismissal?

was the incident listed as gross misconduct in the disciplinary procedures in any shape or form?

was she given the opportunity to accompanyment to the hearing, did she bring someone, is she a member of a union and did she bring a union member? what is the opinion of the person who attended with her as to how the hearing went? (ie. fairly or unfairly)

if as you suggest, the issue is listed in the disciplinary procedures are being misconduct and not gross misconduct, and/or she wasn't given warning that the hearing may result in dismissal, it may be unfair, but if it was then that's a key point as tribunals are mainly concerned about procedures being followed correctly and fairly. most people win tribunals as employers don't follow procedures correctly or at all.

are there any other similar incidents where the outcome has been different and the employee still employed, or other incidents that were similar that did end in dismissal, ie. setting precedence one way or another?

also, did the suspension last a whole month whilst being investigated? did they really take so long to do so and take witness statements? how many witnesses did they have?

i can understand why she wouldn't want to return to work but wants to clear her name, but to do so would mean she would realistically have to return to work, give her notice of resignation, work her notice and leave, but under the circumstances her manager may allow her to resign without working notice
 

Geeders

Novice Member
I cant recall the wording on the original notice -I think it did mention that there was a possibility of dismissal, but I will certainly look at it.

She isnt a member of a union, but was invited to have someone accompany her during the meeting. She chose not to have anyone as at no point did we consider it could lead to dismissal.

The original witness statements were incorrect, and one thing that was cleared up at the hearing was that they were retracted or corrected to the actual events. As a result the case for dismissal was very weak - considering the actual events.

The suspension did last a month. There were 3 other witnesses - 2 of which were those also under disciplinary investigation, so i think they were just dragging their heels rather than needing to do a month long investigation.

There have been instances before where people have been dismissed for varying reasons. We have been speaking to some people who worked there previously, and are trying to find any precidents.
 
It seems to me that 'job responsibility' is a main issue here, particularly as you say your wife held a position of responsibility.

You say that she was under other managers. They also have a defined job responsibility too, so that responsibilities do not overlap.

Generally, in a well run business, an individual's Job Responsiblity is defined and also written down.

Now dismissal for Gross Misconduct is a serious issue. As to whether your wife has a case for bringing an action against the employer is best answered by a professional, who has a full knowledge of all the facts. But from what you have told us so far, it seems to me that she most probably does have a good chance of winning such a case. And the main reason I would say this is as follows:

1. 10 years good service.
2. Apparently no written Job Responsibility.
3. You say: "The original witness statements were incorrect, and one thing that was cleared up at the hearing was that they were retracted or corrected to the actual events. As a result the case for dismissal was very weak - considering the actual events."

There are enormous redundancy payment benefits to be gained for an employer by 'getting rid' of an employee who has clocked up 10 years service, as I'm sure all on here will be well aware.

My advice would be to do as others have already told you and get your wife to approach ACAS for their professional advice. I do not think there would be a problem in you accompanying her when you visit.

It would seem to me she has a good case and if she wins, the rewards would be quite substantial too.
 

unique

Moderator
I cant recall the wording on the original notice -I think it did mention that there was a possibility of dismissal, but I will certainly look at it.

She isnt a member of a union, but was invited to have someone accompany her during the meeting. She chose not to have anyone as at no point did we consider it could lead to dismissal.

The original witness statements were incorrect, and one thing that was cleared up at the hearing was that they were retracted or corrected to the actual events. As a result the case for dismissal was very weak - considering the actual events.

The suspension did last a month. There were 3 other witnesses - 2 of which were those also under disciplinary investigation, so i think they were just dragging their heels rather than needing to do a month long investigation.

There have been instances before where people have been dismissed for varying reasons. We have been speaking to some people who worked there previously, and are trying to find any precidents.

of the 2 witnesses under investigation, were either of them dismissed or get a formal disciplinary warning?
 

Geeders

Novice Member
of the 2 witnesses under investigation, were either of them dismissed or get a formal disciplinary warning?

One was dismissed. They already had previous written warnings about other incidents, so it was kind of expected they were going to be - especially as they had admitted to using incorrect procedure during the incident. Whether they originally had tried to say my missus had done the same to 'spread the blame' isnt clear.

The other wasn't a full time staff member and was only temporary. As far as I know, no disciplinary procedures were brought against them. My missus has been trying to find out if they have worked at other homes within the company since the incident.
 

Woodywizz

Distinguished Member
Blimey Geeds....sorry to hear that Mrs Geeds has been through the mill over this. I can offer no legal expertise nor experience in this matter, but I can offer my full support during this difficult time for the both of you.

*Was it Barney?? ;)
 

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