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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Stay with me on this one!) I am currently in a difficult

Resolved Question:

Hi (Stay with me on this one!) I am currently in a difficult situation with two employees. Last Friday one of our employees was dismissed for poor behaviour etc. Since then I have had a grievance put in against the duty manager by another employee that
also happens to be the dismissed persons best friend. The grievance is very serious in that she accuses the duty manager (also female) of sexually harassing her. She has stated that on three occasions she has been alone with her in a room and has forcibly
kissed by the manager and that she has been slapped on her bottom several times over a period of two months. I have CCTV in the premises but not in the rooms she claims this has taken place. I have found one incident where the duty manager walks past her and
flicks her on her bottom with her keys and doesn't actually touch her. I have interviewed both of them and the alleged victim has said that she didn't report it earlier or to the park manager as she felt the duty manager was too close. The only witness she
claims is another employee that didn't actually see anything but she claims and he agrees that after one incident she told him about it in confidence. He happens to be the boyfriend of the friend that was dismissed on Friday however. Upon interviewing the
duty manager she has denied all the allegations and has stated that this is all to attack her over the girl that was dismissed and that she has had a close relationship with the accuser uptil that Friday last week. She has shown me text messages between the
two of them where the employee has asked to meet with her to discuss her problems with her relationships and has asked for lifts home several times in this period. In one text she has asked the duty manager to go upstairs to talk on their own. The employee
is demanding the duty manger is dismissed and that she will take it further if I don't go down this route. Now the problem I have is I don't really believe her story, I accept that the duty manager has acted unprofessionally in some circumstances and would
need a formal caution but I have absolutely no evidence that the forced kissing and touching has happened other than her say so and all this literally came about within an hour of her best friend being dismissed. I have suggested that as her allegations are
that serious that she should perhaps report the matter to the police but has shown reluctance to do this. The problem I have is that if this was going on would she still have been asking for lifts home and private chats? The duty manager is of course also
saying if she is dismissed she will take it further. The duty manager has been employed for just over 3 months and the employee around 4 months. Both of them are gay and both are aged 24 have both said that one has been interested in the other. My problem
is I'm not a trained investigator and as no police report is being made what is my position if I go with my gut feeling that this is being fabricated can the employee take action against the company if I don't discipline or discipline over the lesser transgressions
and give a warning or if I accept that the employee is telling the truth and I dismiss the duty manager would she have a case of unfair dismissal? I was originally horrified by the initial accusation but as time has gone on the dismissed employee does seem
to be very much involved and I feel is probably orchestrating it to the point that she has tried to demand to be in the interviews. This demand was rejected but then her boyfriend who is also an employee attended as a witness and chaperone. Any advise would
be appreciated as I'm at a bit of a loss with this one as its one word against another apart form the messages the duty manager can show to verify that they have been having personal conversations in a friends type manner. I'm not sure how much investigating
I have to do as an employer rather than a legal professional. sorry for the length of the question !
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. What are you hoping to achieve in this situation please?
Customer: replied 1 year ago.
Just a resolution. The employee has stated if I don't dismiss the duty manager she will leave and take it further etc. I have no great attachment to the duty manger and she has seemingly upset a few staff but that is by being overly strict and inexperienced from what I can see but I don't want to terminate her unfairly either. I did think about disciplining her and perhaps a demotion until she has gained experience but I know that will not satisfy the employee.
Expert:  Ben Jones replied 1 year ago.
Thank you. The starting point here is that if an employee has not been employed for more than 2 years they will not be protected against unfair dismissal. This means that they can be dismissed for more or less any reason, as long as it is not linked to any protected characteristics linked to discrimination. These include age, gender, religion, race, sexual orientation, etc. So you could consider dismissing the duty manager because of these issues and as long as you are not actually dismissing her for being gay, she would not be able to challenge the dismissal as she simply does not meet the minimum criteria to do so. You can therefore go down that route as long as you make it clear that the dismissal is because of the complaints against her and not even mention her sexuality or gender. To dismiss you do not actually have to prove any guilt because all of that is something that is required to make a dismissal fair but as she cannot challenge it anyway it is not relevant. Even if you did have to formally investigate it the law only expects you to conduct a reasonable investigation. This is not the same as what the police may do and it is only an investigation to try and determine what happened. So in this case most likely interviewing those involved and any witnesses and forming a balanced opinion on what you think happened. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
just a quick one if I decided not to dismiss as I don't think there is enough grounds does the employee have any grounds if she then leaves to claim constructive?
Expert:  Ben Jones replied 1 year ago.
To claim constructive dismissal you need 2 years' service as well so no. However, if she has been sexually harassed and can show that it happened and that you took no action then it could be automatic constructive dismissal based on sex discrimination and that needs to minimum service. Also remember that to dismiss you do not have to prove anything as she simply cannot challenge it. Hope this clarifies?
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have read my response 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? If your query has been dealt with please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. If you need further help please get back to me on here and I will assist as best as I can. Thank you.
Expert:  Ben Jones replied 1 year ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.
Customer: replied 1 year ago.
Hi
I have now obtained witness statements that she has tried to get other members of staff to say that they have been assaulted. I have been shown text messages she has sent trying to persuade staff to lie on her behalf. I am conducting interviews tomorrow but I may well dismiss both as there are serious issues with both parties. Thank you for your answers if I need anything else I'll come back
Expert:  Ben Jones replied 1 year ago.
You are welcome, if your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46794
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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