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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46187
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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A carer who has neglected her duties. Reported by relatives

Resolved Question:

A carer who has neglected her duties. Reported by relatives and dislike by Residents . Has a bad attitude at work . Manager threatened to work out if she returns back to work.
She has been under suspension for past month whilst investigation been carried out. Reported to Safeguarding(Social Services) outcome Unsubstantiated allegations.
Internal investigation and advise from Outside Advisor . There is no case she has to return back to work?? Has been In employment for past 5/6 years.
I am the Employer and want to terminate her employment.
Can you help please.
Thank you
Roger
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What exactly has the investigation shown?
Customer: replied 1 year ago.

1. Allegation

Argued with Resident. Left the bedroom whilst the Resident was being hoisted to her bed and up in the air .2 carers should do this task and left the room with just I carer whilst she went to get help. Statement state that Resident was up in the air and pointing figures at the carer for being rude to her. But the carer stated that she was in a chair.

2. Allegation

Did not follow routine of the Resident . Left the Resident feeling upset and unsettled all night for fear of repercussion from that carer

Replied Everyone did the same and no different than any others.

Expert:  Ben Jones replied 1 year ago.
Misconduct, such as the allegations here, is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time.
In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure;
• Has reasonable grounds for believing the employee was guilty; and
• Show that dismissal was a decision that a reasonable employer would have taken in the circumstances.
In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:
1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.
2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.
3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. This is my main concern here – how serious are the allegations and is here is enough evidence. I know you want to dismiss her but you need to be careful with the legal position and whether there is a risk of her coming back over this and perhaps claiming unfair dismissal. Dismissing immediately could be a risk as her actions may not amount to gross misconduct so you may wish to consider a written or final warning first.
In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46187
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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