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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46170
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been suspended on full pay due to an allegation to falsifying

Resolved Question:

I have been suspended on full pay due to an allegation to falsifying care records . I have been in touch with employer to ask when my hearing is also for a copy of written statements and copy of care records and my employer as not responded I would like to know what my rights are
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. How long have you worked there for?

Customer:

I have worked as senior carer since February

Customer:

The company I work for have had a safe guard placed on then and the meeting was last Wednesday and then I got a letter dated 29/11/13 to state I was suspended but I was not involved with anything to do with the safeguarding meeting it was the manager that was requested to attend

Ben Jones :

Being placed on suspension is not necessarily an indication of guilt and there is certainly no guarantee that this will go any further. Under employment law, an employer has a duty to conduct an investigation before taking formal disciplinary action and suspension is primarily used as a precautionary measure whilst that is taking place. The only requirement is that any period of suspension is on full pay, unless otherwise allowed by the employee’s contract of employment.


 


Nevertheless, an employer should not just go ahead and suspend, unless it is actually necessary in the circumstances. It is however acceptable to be suspended if there is an allegation of gross misconduct or if the presence of the employee in the workplace could potentially damage any investigation or have some other negative impact.


 


If the employer’s investigation collects enough evidence to justify disciplinary action only then should they consider going down that route. If that does happen the employee has the right to be informed in advance of the allegations against them and will get the opportunity to formally defend them at the disciplinary hearing.


 


On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should just drop the issue and allow the employee to return to work as normal.


 

Customer:

I know that but the employer I work for is going on holiday on Saturday till 23/12/13 so is there not a time limit on how long I am suspended and also can't I ask for evidence to be given to me and what is that time scale and dies she not have to give me a date fir a hearing for the investigation before the disciplinary as while I maybe on full pay I am losing money due to my hours only been contracted to thirty hours where I normally do sixty to seventy a week

Customer:

Where I am suspended it does not make sense that I have no threat to business if working and also can she keep me suspended till she returns from holiday

Ben Jones :

Any period of suspension should not last longer than is reasonably required in the circumstances although there is no limit specific in law and depends case by case. You cannot ask for evidence to be given to you - this only applies if this proceeds to a disciplinary. There is no requirement to hold an investigatory meeting but if they decide to do so then you will be told of when and where that will take place.

Customer:

Also there is no evidence to my suspension

Ben Jones :

The issue is that problems with unreasonable suspension can only really be dealt with by the employee resigning and claiming constructive dismissal. unfortunately you need 2 years' service to do so and as you do not meet the criteria, you cannot challenge the employer's actions outside of the workplace

Customer:

Why can't I ask for evidence due to the nature of my suspension as cqc are spot checking her and have gave bad marks against management of company also deliverance of care is below standard

Ben Jones :

Because when you are suspended they just need to tell you of the basic reasons for this but do not need to provide evidence - the evidence part only applies if you are facing a formal disciplinary

Customer:

But she as not said that I am been disciplined and she as also not stated when I will be going for hearing just I an suspended which as now been a week and with no contact at all from the employer

Ben Jones :

yes i mentioned that earlier - just because you are suspended does not mean you will be disciplined and also there is no guiarantee that you will have any hearing at all, whether investigatory or disciplinary

Customer:

I don't understand as she as given no reason apart from an alleged accusation not a true allegation

Customer:

So she can just say it us ok cone back tomorrow is that what you mean

Ben Jones :

she can do, it can end up either being asked to return to work, kept on suspension and continue with the investigation, or eventually proceed to a disicplinary

Customer:

Well where are rights fir an employer to get away withstand kind of treatment employees

Ben Jones :

As mentioned you have very few rights in this situation I'm afraid and that is due to your length of service - you can be dismissed or be forced to resign for more less any reason until you have accrued at least 2 years' service

Ben Jones :

So whilst an unfair suspension could force you to eventually resign and claim constructive dismissal, which is the usual way of dealing with such issues, this is not possible here

Customer:

So basically you are saying I can be indefinitely suspended on full pay

Ben Jones :

correct, it just means that eventually you may decide enough is enough and leave but will not be able to take the matter any further

Customer:

Well that does not make sense and I know you do not need to be employed fir two years to go to fir legal action against an employer as harvests changed quite a while ago as you can go through county court with employer for claims

Ben Jones :

You cannot go to the county court to challenge an unfair suspension or constructive dismissal

Ben Jones :

You can only really sue the employer in there for breach of contract but being suspended on full pay for a long period of time is not a breach of contract

Ben Jones :

If you were suspended with no pay then it would be breach of contract and you can sue them in the county court

Ben Jones :

But in your situation you cannot make a claim there and would need 2 years to be able to bring in a claim in the employment tribunal

Ben Jones :

There is no benefit in me giving you incorrect information, i am here to tell you what your legal position is but I am afraid it does not mean that it will always be good news and I have a duty to be honest

Customer:

I understand you are given me right advice but my employer as no management skills been torn apart by cqc running the care company all the wrong way and also I know she thinks she is above the law and this is nit been bitter as,I have worked 33years in the industry and she does everything outside of the rules and I know due to her not contacting me is that there are no true facts behind the alleged allegation but she is waiting to see if she can push me to leave which will not happen as I know categorically that I have done nothing wrong hence why I am contacting you to my rights as I know the company policy for discipline as I put it in place and she is not doing it correct as she does not have a clue

Customer:

What I am saying is that she goes away Saturday and she will have someone who helps out but not on payroll to do investigation and probably my hearing which is this correct in the rules of employers law and rights

Ben Jones :

I understand your position but what you believe is right and should happen may not necessarily reflect your true legal position. You are in a rather vulnerable position due to your length of service and at present you have a very weak legal leg to stand on. Whilst you may be reluctant to leave, she could quite easily turn around and dismiss you anyway and you cannot challenge that, the best you can hope to get out if that was to happen is you pursue your notice pay if that had not been paid. The law does not state who should conduct investigations and hearings and even if she allowed the company cleaner to do it, it brings us back straight to the same point - you cannot challenge any dismissal because you ae not protected against unfair dismissal - the employer can fail to follow the correct procedure but it would have just meant the dismissal was procedurally unfair - something you cannot claim against

Customer:

But my contract states that dismissal can only be done by gross mis conduct which surely that as to be confirmed that you did gross misconduct and that they show you proof as employers cannot just say that is it you are sacked due to misconduct unless thryvhavecproif

Customer:

As that would mean it would not look good on a reference if you had not committed it and yet you got sacked

Customer:

That is like saying you committed a crime when you have not !!!!!!!!!

Ben Jones :

Oh they can still dismiss - this will not prevent a dismissal. It just means that you can pursue your employer for the notice period they may try and withhold by arguing this was gross misconduct. But it will not give you any rights in challenging the dismissal and seeking compensation for that or get you your job back. When it comes to references the employer has a duty to be accurate and truthful so they cannot just provide one without having investigated the allegaitons and being able to justify the contents of a reference

Ben Jones :

The rights on references are separate and do not depend on your service

Ben Jones :

But they can simply refuse to provide a reference - that is legal

Customer:

I thought it was law that they cannot give a bad reference unless kid course you committed a criminal act

Ben Jones :

No, they cannot give an incorrect or misleading reference - if there is evidence to justify a bad reference they can do this. For example someone who is constantly rude to customers or colleagues can have that mentioned in their reference - after all it is the truth so it is allowed

Customer:

Right ok that was how I thought that they cannot put anything in that is not true it can not be vs'll defied

Customer:

Well thanks for your help not that it wasn't anything I did not know seems to me like it podcasts of time having an employment law as does not help employees

Ben Jones :

Yes, so if they say you were dismissed for gross misconduct when they did not even investigate it or give you the chance to defend yourself then that would be unfair and can be challenged.

Customer:

Ok thanks maybe in touch when she decides to get in touch with me over this case

Ben Jones :

Well employees have plenty of rights, it just happens that due to your particular circumstances these are limited - in other circumstances you would have had certain other rights

Ben Jones :

ok no problem, hope it gets resolved without having to come back here

Customer:

You don't know this stupid girl like I do she is going to crash and burn due to her stupidity but thanks again

Ben Jones :

You're welcome, all the best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46170
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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