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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47863
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have worked as a Senior Support Worker for 4 years with a

Customer Question

I have worked as a Senior Support Worker for 4 years with a Care Provider I recently resigned from my position on the 9th of May 2014 and obliged my contract of employment. As I wished to move to Coventry. I applied for a job for a Team leader position in Coventry, I was accepted for the post. HOWEVER it was the same Care Provider. I have been in the role for a total of two weeks and I unfortunately in the five years of working in care, I made an medication error. In which I reported to safeguarding and informed the necessary steps. I was immediately suspended from doing medication while on shift, and had to assign the duty to another member of staff. The member of staff was aware that I administered the morning medication in the afternoon by accident (As I was distracted by the individual we support), which is the same medication as the evening. I spoke to the manager and it would only be a significant discussion, as these error occur in this home regularly. Obviously I would be re-med trained and accessed. The person supporting the specific individual, asked would further medication be giving in the evening? I said no, as I've accidentally administered the wrong medication. My manager informed me that I was suspended from medication and asked me to assign a certain staff to administer the rest. The individual who was assigned was supporting me with calling NHS direct as was fully aware that I administered the morning medication and that it is the same as the evening. The member of staff who was assigned medication - administered the evening medication. I didn't say specifically not to administer nor did I say she should administer. Although I thought it was pretty clear we wasn't administering medication for that individual. I should of followed the same protocol, but for some reason I didn't. Which I regret. Due to being stressed. I know as soon as the investigation is found, and the second error is occurred I would immediately be suspended for gross misconduct (And so I should) I immediately resigned from my role effective immediately on the 20/06/14 (Incident happened on 19/06/14) I also do not have a contract of employment as I have only just started. I have only been at the service for 2 week and from what I'm aware you do not have to give a weeks notice, unless its after a month. My question is I have resigned before an investigation has occurred, Can I still be issued with a disciplinary hearing? Would HR be able to state anything in a HR reference?


 


As obviously it is the same company and would like a reference for my last role.

Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Was there a gap between the two jobs with the company?
Customer:

Yes. I left on the 9th of May and started on the 4th of June.

Ben Jones :

Hello, the fact there was a gap longer than a week between the two jobs means there was no continuous employment so at the time of your resignation you did only work for 2 weeks, meaning by law you do not have to give a notice period to resign. Had there been a contractual notice period you would have been expected to honour that but in the absence of such it is possible to leave immediately as you worked there for less than a month.


 


Now that your employment has officially terminated it is not possible for the employer to pursue a disciplinary matter against you as you have no obligations to engage in one or answer any allegations.


 


However, in a reference it is possible to state that you had resigned pending an investigation into the allegations as that is what actually happened. They are not saying you were guilty but they are saying that you resigned when faced with such allegations. Any organisation receiving such a reference would then make its own conclusion as to what that means.


 


For example in the case of Bartholomew v London Borough of Hackney the employer provided a reference which contained details of disciplinary proceedings which were pending at the time the employee left. The court decided that the employer had not breached its duty of care by providing such a reference as it would have a duty to provide a reference that is true, accurate and fair and does not present facts so as to give a misleading impression overall. Therefore, if the employer had not included details of the disciplinary proceedings it would have failed in its duty to the prospective employer to provide a reference that was not unfair or misleading. Similarly, in this case the employer could potentially mention the pending investigation, although there is of course no guarantee they would do so.


 


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

Thanks.

Customer:

2 questions:

1. I resigned today, as I knew an investigation would occur. At this time no investigation or error has been found. As I have resigned before an error is found? Would I still be liable?

Customer:

2. I have only worked there for two weeks, overall I kind of wanted to discard this role off my cv, would it be possible to request a reference for my old role that I ended on the 9th of May soley?

Ben Jones :

1. When you day liable, in what way?
2. Isn't this the same employer? Would they not mention that you had two jobs with them and include the latest one?

Ben Jones :

*day = say

Customer:

Although the second error wasn't my fault, as I was suspended off medication hours before. I did fail my duty of care to report it. Which I regretfully regret. Making me liable as I failed to follow the procedures. = Gross misconduct.

Customer:

I'm also receiving mass calls from the employer. In my situation am I better to respond back? or to not respond to any conversation?

Ben Jones :

well this is irrelevant now because your employment has legally terminated so they cannot pursue a gross misconduct charge against you as you are no longer their employee. So they cannot say for example you were dismissed for gross misconduct as that is not true - you resigned pending an investigation, which may have been for gross misconduct.

It may be best to see what they want now rather than burying your head in the sand

Ben Jones :

Can I help further or has this answered your query?

Ben Jones :

Hello?

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Thank you. It wont let me mark excellent.

I spoke to my Manager, she wasn't aware of the error. Shes speaking to her Ops Manager to see if theirs anyway to make it a minor offense.

Ben Jones :

Good news, thanks for the update and all the best

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 years ago.

Hello,

Just a brief question.

Although I resigned. The company has stated there still going to perform a Disciplinary hearing against me? Despite already resigning.

Expert:  Ben Jones replied 3 years ago.
Hello, when you resigned, under the circumstances when no notice period was due, your employment would have terminated immediately. Therefore, the employer cannot pursue a disciplinary against you because you are no longer their employee. They can do that and waste their time if they really wanted to but they cannot say in a future reference for example that you were dismissed or that you were found guilty at disciplinary because that did not happen and you had already left the company before then
Customer: replied 3 years ago.

Hello,


 


They stated despite resigning, I will still pend a disciplinary and one will be performed next week.


 


I work in Health and Social Care and would be a Safeguarding issue, do they have any grounds under these circumstances. Or are there HR talking crap. The Operational manager called me today stating despite resigning that has been accepted, that I am still accountable and Ill have a disciplinary hearing next week in which I'm welcome to attend.


 


I'm a little confused as I resigned and still receiving a disciplinary


 

Expert:  Ben Jones replied 3 years ago.
It is not possible to perform a disciplinary once you have left - they can do their own investigation but they cannot then state you were found guilty because you were no longer employed by them and you would not have had the chance to properly defend yourself.