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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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My friend works in a nursing home as a care assistant on night

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my friend works in a nursing home as a care assistant on night shift and has worked the same shift pattern for at least four years, Thursday to Sunday inclusive. She has had problems with the manager in the past after she reported a Filipino care assistant who had hit one of the elderly residents. She was told by the manager(also Filipino) that , because of her poor English(her English is perfectly acceptable), she didn't really understand what she had seen and no investigation would be made into the assault. Even if her English was poor it would make no difference to what she had seen with her own eyes. Ever since then she has felt discriminated against. Recently( last week) she was told by the manager that her shifts would be changed after an anonymous complaint that she was leaving unit unstaffed when she went on her break with the Staff Nurse(myself) and that it was alleged that we were having a relationship(She rents a room at my house but we are not in a relationship as I'm Gay. What rights does she have to get her old shift pattern back? Also, surely it's slander to accuse her of having a relationship without proof?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello how long has she worked there for?
Customer: replied 1 year ago.
she has worked there for at least 5 years
Customer: replied 1 year ago.
can u help me?
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I was offline by the time you had replied. This could indeed amount to potential discrimination, in addition to detrimental treatment due to having made a protected disclosure (i.e. blown the whistle) and general breach of trust and confidence as well as a breach of implied contract. This is due to:· Being out at a disadvantage for her nationality as apparently her English is not good, which is not true· Having been treated detrimentally for raising a health and safety concern which means she is likely a whistleblower and as such should not be treated unfairly because of it· The fact that she has worked a set shift for 4 years means that this may have become her contracted shift pattern through custom and practice. Therefore, changing it now could amount to a breach of contract· The general way in which she is treated could mean it is a breach f the implied term of trust and confidence which exists in every employment relationship. In the first instance she should take this further through the internal grievance procedure. After that the option of tribunal claims exists if necessary. This is your basic legal position. I have more detailed advice for you in terms of the rights she has on taking this to the tribunal and how to do this, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46813
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Expert:  Ben Jones replied 1 year ago.
Thank you. As mentions this could potentially amount to constructive dismissal, which occurs when the following two elements are present:• Serious breach of contract by the employer; and• An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you. Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort. If she was to make a claim for discrimination or detrimental treatment due to whistleblowing she does not have to resign although any claim must be made within 3 months of the alleged event taking place. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here:https://ec.acas.org.uk/Submission/SingleClaimantPageIn terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.

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