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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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hi my girlfriend who is a childminder has just received a text

Resolved Question:

hi my girlfriend who is a childminder has just received a text from her employer suspending her pending further investigation into a breach of confidentiality. This based on a visit the owner has had today from the local authority following my phone call to the NSPCC reporti g the conditions that young children were be cared for and the potential risk that I felt they were at although there is no proof as to where the visiting official obtained the information from. Can my partner be suspended on above basis and should the suspension have taken place in a meeting and put in writing?
Submitted: 3 years ago.
Category: Law
Expert:  tdlawyer replied 3 years ago.

tdlawyer :

Hi thanks for your question, my name is ***** ***** I can assist with this.

tdlawyer :

Is there a power to suspend her in her contract of employment? (I assume she is employed?)

Customer:

the contract does not mention suspension only termination

tdlawyer :

OKay. Has she been suspended on full pay?

Customer:

yes but only her not the owners son or girlfriend who are also employed

tdlawyer :

OKay. Was she given the details of the allegations made, and was she asked for her view about them?

Customer:

no she was called into a room and reminded of clause with regards ***** ***** just received the suspension via txt

tdlawyer :

And this was all pretty rapid this evening?

Customer:

surely if she felt that children were at risk and disclosed this to me based on the lack of experience of the other staff and conditions in the property this would fall outside of this clause

Customer:

yes the txt came through about 30 minutes ago. we asked for the suspension in writing but she then changed her tune and said she was not accusing my partner of anything so we then asked what was the reason fro the suspension but there has been no answer !

tdlawyer :

Okay.

tdlawyer :

An off the wall reaction to suspend somebody, especially where there are serious accusations, may mean that the suspension is unlawful. It will be a breach of the implied term of mutual trust and respect for an employer to make a knee-jerk reaction to suspend, without any proper consideration of the issues at hand. In such a case, so long as the employee has the qualifying period of employment (i.e. 2 years) they may be able to resign and claim constructive unfair dismissal.

tdlawyer :

Ideally, I doubt she wants to lose her job, and she might do well to discuss this with her employer and see if she can reverse the decision. She may not have to do this though if she has worked for more than 2 years and wishes to resign and claim.

tdlawyer :

This type of claim can be difficult, because that way it is proved in the Tribunal is different to normal unfair dismissal claims.

tdlawyer :

It's not action that should be ta***** *****ghtly.

Customer:

unfortunately my partner has only been their 10 months but did resign last week based on the conditions and lack of investment in more experienced staff

tdlawyer :

So she was leaving anyway?

tdlawyer :

And now she is suspended on full pay. What are her concerns, as she may not be worse off at all?

Customer:

yes she is due to leave on the 18th July but I expect this is a tactic to avoid paying her what is due

Customer:

I would also see suspending her without cause or proof could be deemed as defamation of character ?

tdlawyer :

It's unlikely to be defamation, as suspension is seen as a "neutral" act.

Customer:

ok

tdlawyer :

No accusations have been made etc. as yet.

tdlawyer :

The better approach is the breach of mutual trust and respect argument etc., if she wants to walk away now and claim what is owed to her. But, as I mentioned, this isn't always an easy type of claim, but what she could do is make it plain she feels this way (in writing) and say that she reserves her position for the time being about what she should do until she has had the opportunity of taking and acting upon legal advice.

tdlawyer :

Then, see what happens.

tdlawyer :

I woud like to think that would be the end of it and she would be paid what she is owed.

tdlawyer :

If not, then she could present a claim to the Employment Tribunal later (within 3 months of leaving).

tdlawyer :

However, if she wants to walk away on the basis of a breach of the mutual trust and confidence term, she needs to make it clear she is doing that.

tdlawyer :

Does all that make sense?

Customer:

The better approach is the breach of mutual trust and respect argument etc so how would we word this to her to say she is not just going to accept a suspension for no reason ?

tdlawyer :

Tell the employer there is no lawful reasons for the suspension and that this is a breach of the implied term of mutual trust and confidence. Tell them that she reserves her rights.

tdlawyer :

Then see what happens. If she is dismissed, then your partner might argue that the attempt to dismiss her is a further breach, and she ends the contract herself. Then she can claim for the outstanding monies due to her.

Customer:

so the fact there is and would be no proof that she reported the business fro the way it operates she purely confided on me as to the way things happened etc would she won't be in breach of the confidentiality clause ? sorry

Customer:

Ok understand. should she put this in writing to her employer based on the fact she is suspended ?

tdlawyer :

Yes, that's correct.

Customer:

Ok thank you for your help you have been very helpful

tdlawyer :

NO problem. have you heard of ACAS?

Customer:

yes I was going to contact them tomorrow do you think this would be worth a call also ?

tdlawyer :

Here is their website: http://www.acas.org.uk/index.aspx?articleid=1461 They advise by telephone, on a no-names basis, and can assist you in understanding all of this a little more.

tdlawyer :

Yes, it is, they're a great free service.

tdlawyer :

Anyway, I do hope this has helped?

Customer:

great appreciate your time that's all I guess

tdlawyer :

Thank you! Please remember to rate the answer for me before leaving.

tdlawyer :

Good luck with this.

Customer:

Thanks it was excellent

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