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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46784
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Jones My wife has just been suspended from her Job

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For Ben Jones
My wife has just been suspended from her Job as general manager of a holiday park for falsification of company documents. A bit of a back story is that she recently told her employees she is pregnant. Shortly after this, she was told she was being given a warning for not maintaining the appearance of the yard area. There was no investigation despite being pre warned about this warning. The was an invite to a disciplinary meeting in which her HR manager noted that she had been told on several occasions to 'sort it out'. She went very prepared for the meeting with proof that no such words had been said to her(she emails her personal email account a copy of all emails from her seniors) and in fact had an email stipulating that he was aware that not everything would be perfect as they had been short staffed for several weeks. She also wrote a letter to her HR manager about how she feels she is being treated differently since she told them about her pregnancy. She was told on the day by her HR manager that she had prepared well and she couldn't see it going any further. The following week her line manager came to her site and issued her with a first written warning to stay on file for 3 months.
In defending the disciplinary my wife provided evidence to explain what she had been doing to rectify the untidy yard and one of those documents was a letter of concern she had given to her maintenance team who had failed to keep the yard tidy. When looking for the original file of the letter she had given them she realised she must not have saved it so recreated the document to show during the disciplinary. They have found out that this document was created after the date stated on the letter and have now suspended her for falsification of company documents two weeks after she received a first written warning. She has 9 years service with the company, performs well, receives large bonuses, is spoken about highly by senior managers but she cannot help but feel this is all because of her pregnancy. She has also been made aware of gossip between other managers and her line manager. My question is she really wants to leave but isn't sure whether we would be in a better position to wait for dismissal on conclusion of the suspension(since we cannot raise a grievance in between according to her employers rules) or leaving without notice and claiming constructive dismissal and possibly discrimination of pregnancy. We are not assuming that we are correct, but I am fairly certain there have been breaches of contract at the very least in terms of pre empting the first written warning, no investigation etc.
My wife was also asked to dismiss a junior employee last year by the same line manager because she fell pregnant whilst on her first maternity leave and would be taking another maternity leave over this summer. He said they could dismiss her because its a full time job not a part time job. my wife believes this shows they have a very bad culture in her company in regards ***** ***** and pregnant women, but a part of the issue may be that they are not used to having pregnant women in senior roles they tend to be older women who have already had children and families. Ultimately I would like to know is recreating a document to a similar fashion considered the same as falsifying a document.
What information would we need to prove this is due to her pregnancy (despite them claiming on numerous occasions it is definitely not due to her pregnancy)
And do we have any grounds to pursue this matter further?
One last bit of information is that she was on a performance improvement plan and has ben since November, she is still on it now. She was told however that her previous disciplinary was not connected to her performance improvement plan.
Sorry this is long
Many thanks
Danny Shaw
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, let me consider this and I will get back to you, thanks
Expert:  Ben Jones replied 1 year ago.
Thanks for your patience. What she has done could indeed be seen as falsification of a document. That would not require a document to be created if it never existed before or for it to be created with false contents or contents different to the original. The mere creation of a document to make it look like it was created previously and putting it forward as such would be falsification because in reality the document was not created when it was claimed. The contents may have been identical but there is no opportunity for the employer to satisfy themselves that this was the case – as far as they are concerned she could have just created a document which never existed just to get her own way. In terms of proving that this is due to pregnancy, this will not necessarily be easy. Unless you had some evidence which directly links their actions to her being regnant you are relying on creating links and assumptions based on history and what is probable in the circumstances. The issue with that is that one person could view it in a completely different way to another so if you go to tribunal, one judge could see no evidence of discrimination whilst another could agree with your arguments. So it is quite a bit of chance involved there, which unfortunately is inevitable in these circumstances. However, in general you need to rely on past behaviour and how other pregnant employees have been treated, also comparison to other non-pregnant employees, whether similar incidents have occurred and they have not been reprimanded in the same way she has. Finally, the options of going forward – constructive dismissal is generally more difficult to win than unfair dismissal, so if you believe that this may result in dismissal then you may as well allow for that to happen then pursue the unfair dismissal and discrimination claims. There are options for her to try and get something agreed without having to make a full blown claim though so I can cover those as well. This is your basic legal position. I have more detailed advice for you in terms of the ways she can try and take the matter further, 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: 46784
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 1 year ago.
Thank you for this information Ben
The document was given to the employees at the time she stated, and she is sure she saved it but on a busy day she was being hounded for the files so without even thinking about it just re entered the information into a template that is provided by HR. This morning we also received a letter confirming her suspension, but the letter states that my wife said in her statement that she did falsify the document and that it was never given to the members of staff in question. This is not what she said when she was interviewed prior to suspension and not what is written on the statement that she signed (she is adamant that she read it three times). After the interviewer conducted the interview he typed it up and asked her to sign it but never gave her a copy.
As far as my wife is concerned HR don't normally ask for letters of concern as they usually only stay live for 1 month.
Is she within her rights to request that this is corrected before the process continues?
From what I have told you what would be the main points on which to focus if she were to be dismissed following this suspension?
Can she still claim for breach of contract from the previous failure to follow procedure? and potentially this incident if acas regulations are not followed? She feels like the first warning was given despite knowledge of the situation in order to make it easier for them to dismiss her
Is it relevant that none of her senior managers work weekends or bank holidays and therefore to be suspended on Tuesday 3rd May for something that is supposedly so serious when it must have been known about before the previous weekend?
My wife should be able to prove that her staff did in fact receive these letters from witness statements. Is this relevant?
Is the gossip that she has been made privy to between other site managers and her line manager relevant?
Many thanks for your help
Danny Shaw
Expert:  Ben Jones replied 1 year ago.
Thank you. If she has found discrepancies between what was actually said and what they are claiming was said the she should highlight these and bring them to the employer’s attention. I would say that the alleged falsification and the nature of the document plus the effects on the company are not that serious so to treat this as a serious matter to justify dismissal may be pushing it somewhat. In terms of claiming breach of contact that would be difficult because to be able to make such a claim she has to show that she has suffered losses as a result. Just because procedure was not followed does not mean losses were suffered and in the circumstances I do not see losses having been incurred. Also to claim for breach of ACAS Code you cannot make a standalone claim, it has to be considered as part of another valid claim, such as unfair dismissal, therefore she can only raise this if she makes some other main claim in the tribunal. If she can prove that the statements were received as claimed then it would help in showing that the documents she re-created were not falsified in terms of their contents and that should reduce the seriousness of the allegations. The gossip is not really that relevant however. If this results in dismissal and there are any doubts or evidence that the requirements have for a fair dismissal have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal and/or discrimination can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal. 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/SingleClaimantPage In 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.
Customer: replied 1 year ago.
Thanks Ben
One last thing. Her experience of being asked to dismiss a junior employee because of her pregnancy(which she refused to do) I assume would just be one avenue to show the company to discriminate against pregnant employees. One of our difficulties is that there has never been a pregnant person that holds the same role as my wife and therefore don't really have a comparator. Her experience is also just her word against his, can we bring this up without any corroborative evidence?
We know from several sources that the company is taken to several tribunals every year - usually unfair dismissal - can this be used as evidence to suggest there are intrinsic problems within the company? One last thing is that when she was placed on a PIP in November the reason for them doing so was that she asked for advice in dismissing an employee, for which she never received any training in whatsoever. The employee that she dismissed was not invited to any investigatory or disciplinary but my wife was told to sack her on the spot for poor performance. This employee is now in the process of taking the company to an employment tribunal for unfair dismissal. Does any of this info help her case to show disregard for a fair process?
If my wife is dismissed, is it viable that a court can decide the dismissal was unfair just because it probably warranted a lower level of warning?
sorry about all the questions I won't ask any more I promiseMany thanks
Danny
Expert:  Ben Jones replied 1 year ago.
Yes, it would suggest that there may be a discriminatory culture but does not automatically mean that she was discriminated. As to a comparator, in the absence of a real comparator a hypothetical one can be used, this is what a tribunal would do. You cannot really use the fact that other claims are made against them to support your argument, for example anyone can make a claim, even if they had a completely baseless claim and that can easily skew the statistics you are trying to rely on. One of the factors a tribunal will consider is whether the decision reached by the employer in the circumstances was one a reasonable employer would have reached. So if the outcome is too harsh for what a reasonable employer would have decided, that could make the dismissal unfair
Customer: replied 1 year ago.
Thanks very much for your advice Ben. It has made her position a bit clearer now.Thanks againDanny
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best

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