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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61821
Experience:  Qualified Employment Solicitor
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I need legal advice in relation to my probation, please

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i need legal advice in relation to my probation, please advice?
JA: What were you convicted of exactly? Have all your appeals been exhausted?
Customer: i received a letter from grievance stage 1 with advice of probation being terminated, extended don unsuccessful.
JA: Where did this occur?
Customer: the grievience was against my manager, i am a nurse at homerton hospital
JA: Anything else you want the Lawyer to know before I connect you?
Customer: i can send you the letter to have a look at it

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

What did you raise the grievance for and how long exactly have you worked for this employer?

Customer: replied 11 days ago.
ye s
i am senior nurse employed by homerton hospital
since 6th of june 19, i will copy teh letter and paste so you can read it, is this easiert?
Customer: replied 11 days ago.
Private and Confidential
To be opened by addressee only
Address
Private and Confidential
Kamila Ahonle
By Email
Dear Kamila
Re: Formal Stage 1 Grievance Outcome
Following the Formal Stage 1 meeting that was held with you on 12th November 2019 to discuss your grievance, I am now writing to you to confirm the outcome.
I chaired the meeting, supported by Paul Wardle, HR Business Partner, who also took notes. You attended the meeting with your union representative, Milton D‘Costa. You had previously submitted your grievance in writing, and following the meeting provided some additional supporting documentation.
I shall summarise what I understood to be the key points of your complaint.
You explained that your complaint concerned your manager, Gertude Nyoni.
You explained that you started work in the LAC team on the 3rd June 2019. You had declared at your interview that you were friendly (or knew) with an existing member of the LAC team, Aubrey Mensah. When asked why you had declared this, you had been asked by a panel member Ann Jones if you knew any of the other LAC nurses. You noted that the LAC network across London is quite small.
You stated that during your local induction on the 3rd June 2019 your manager Gertrude talked to you about previous members of the team. She said that a previous member of the team (Susan) was not a good worker. She said that her previous experience of doctors was difficult, including that of a Dr Jacks. She told you that there was a question mark about Aubrey’s performance, and that she was passive. She told you that Paula Liverpool had taken out a grievance against the previous manager and that she was not sure who the bully actually was, Paula or the manager. She told you that she had been in trouble in her previous role at St. Georges. You said that you were shocked at this information; you didn’t know how to react. You had not previously known Gertrude so you did not know why she would chose to share this information with you at such an early stage of your employment. You explained that this disclosure happened in an open area by the window during the local induction. Gertrude had volunteered this information to you. You told Gertrude that you had worked with Susan at Crouch End and left the conversation there.
You said that you were very stressed and that as a result of an issue in your previous employment at CNWL you had had a breakdown. You said that this was because a LAC service user had committed suicide.
- 2 -
You said that since that time, you continued to have concerns about Gertrude’s communication. In July, Gertrude had asked you to comment on a doctor’s independent health assessment and you felt that it was not your place to comment on a medical opinion. I queried whether you thought it might be reasonable for Gertrude to ask your clinical opinion on an assessment. You felt that it might be if this was in a private area; although you felt that Gertrude was asking you because she wanted you to be on her side. She discussed this with you in the open area of the virtual school, and no patients should be discussed in an open area. I am not clear from our discussion if she was discussing identifiable patient details with you which would constitute a breach of confidentiality. I agree that patient details should not be discussed in an open area as a matter of good practice.
On a following occasion, when discussing adding the Homerton Logo to paperwork; you found that Gertrude was abrupt and said if you wanted to do it, you could do it yourself. You said that Paula agreed with you that it was rude. I said whether this was a regular occurrence and you said that it was not, not to you directly.
You said that you had also been offered a band 7 role at St Georges at the same time that you accepted the Hackney role. You were then told by St Georges that they had to withdraw the role because of funding issues, but they offered you the opportunity to work on Bank. You said that you were later advised by Gertrude that her friend had been offered the role. You also noted that on the salary uplift form completed by Gertrude it said that you had been offered a role at St. Georges, as part of the justification for the increase in the salary. You said that you had not told Gertrude that you had been offered the role. It was your suspicion that someone (i.e. Gertrude) at Hackney had told St Georges that you had been offered the role and therefore they subsequently withdrew it. You said that you had never told anyone in the LAC team about the job offer. You advised me that you had been offered both jobs on the 1st May and that St. Georges had subsequently withdrawn the offer on the 25th May (approximately.)
You said that you had received a letter from Florence Elikwu on the 24th October 2019 (which I attach as appendix 1) regarding a meeting that took place on the 7th October 2019 and that you felt that you were being victimised. This was because you were informed that as a result of a
Customer: replied 11 days ago.
can you call me tomorrow as i am leaving work right now

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Customer: replied 11 days ago.
ok how can i send the letter over to you?
Customer: replied 11 days ago.
please see attached
Customer: replied 11 days ago.
Ok thank you Ben

Many thanks for your patience. Can you please clarify what do you specifically want to know about all of this, please?

Customer: replied 11 days ago.
What to do as half of the things in the letter is misonctroodaed
Customer: replied 11 days ago.
Can you please advice

So the grievance was rejected but you are still employed by them, correct and no further action is taken against you?

Customer: replied 11 days ago.
I am under probation which end tomorrow and as result of the grievance they want to use this against me

To do what?

Customer: replied 11 days ago.
For as a reason to end my employment which is highlighted at the end of the letter

Ok the issue with all of this is that if you have been continuously employed at you place of work for less than 2 years then your employment rights will unfortunately be somewhat limited. Most importantly, you will not be protected against unfair dismissal. This means that your employer can dismiss you for more or less any reason, and without following a fair procedure, as long as the decision is not based on a reason which makes a dismissal automatically unfair. These include:

· Discrimination due to a protected characteristic (i.e. because of gender, race, religion, age, disability, sexual orientation, etc.)

· Taking, or trying to take, leave for family reasons including pregnancy, maternity/paternity leave, parental leave, adoption leave or leave for dependants

 

However, if the dismissal had nothing to do with any of the above exceptions, you would not be able to challenge it. In that case your only protection would be if you were dismissed in breach of contract. That would usually happen if you were not paid any contractual notice period due to you (unless you were dismissed for gross misconduct, where no notice would be due). If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. The employer would either have to allow you to work that notice period and pay you as normal, or they instead have to pay you in lieu of notice, where you are paid for the equivalent of the notice pay but your employment is terminated immediately.

 

So they could be relying on false or even non-existent reasons and it would make no difference. It is all dependent on your service and you simply do not meet the minimum criteria to challenge a dismissal, even if it is unfair.

 

I appreciate this may not be the answer you were hoping for but it is the legal position and I hope that it at least clarifies where you stand?

 

Customer: replied 11 days ago.
I am employed by nhs and is a standard contract 6 month probation and all other nhs services carry on as paid sickness, annual leave entitlement and pension
Customer: replied 11 days ago.
So I a bit difficult and I do have disability

so what is your continuous service?

Customer: replied 11 days ago.
Since may 2007

Ok you can ignore the part about the no rights against unfair dismissal. You will have unfair dismissal protection but that does not mean you cannot be dismissed. They will however have to go through a fair procedure.

 

In terms of misconduct, Alleged misconduct is a common reason for dismissing an employee. It could be either due to a single serious act of 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:

{C}· Conducts a reasonable investigation

{C}· Follows a fair disciplinary procedure

{C}· Has genuine belief the employee was guilty; and

{C}· Shows 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, which can be incorporated into their own disciplinary policy. Altogether, it means that a fair disciplinary procedure should be conducted as follows:

 

1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be.

 

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee can be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a colleague.

 

3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them.

 

4. Penalty – this has to be a sanction, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee is issued with a written warning for a first offence.

 

In summary, the requirements of proof are not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Dismissal can be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that dismissal was an outcome, which a reasonable employer would have taken in the circumstances.

 

Does this clarify things a bit more for you?

Customer: replied 11 days ago.
Yes thank you

Most welcome

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