Ask a Law Question, Get an Answer ASAP!
Hi, I am a carer in a residential nursing home. Is there anyone online who can advise me in regard to defending myself against an allegation that my conduct towards a resident was 'physically aggressive and abusive'. This allegation has been made by the resident, and supposedly happened on a Monday night shift. The resident went home on the Wed and it was the following day when her daughter called the nursing home with the complaint. The resident said she was 'fiddling with her sheet' and I slapped her on the hand. This is a totally false allegation for which I have been suspended on full pay, pending an investigation. Whilst the resident named me, her daughter said it was 'just before' she went home, therefore my manager has admitted that she can't be sure if this may have been the Tuesday... when I was not on shift. I understand the suspension is as much for my benefit as the residents during the investigation. However, I am concerned that I may well lose my job over this. It is totally against my character and nature to be in anyway abusive. I have confidence in the fact that I am a very good carer, this has been verbally confirmed to me over the past few days by my colleagues , who have been very supportive. The resident who made the accusation has a degree of confusion. Why she named me is beyond my understanding. The advice I am hoping to get is whether it is for me to prove my innocence, or whether they have to prove my guilt. If I have to prove my innocence, how do I do this?
It will be 2 years in August
I have had a call this morning from my manager . I have to attend an interview at 2pm on Monday, with her and a lady from HR. I was also asked to attend fire training for 3 hours tomorrow afternoon.
The manager said they 'should' make their decision the same day. Other than that the safe guarding team have to do their own investigation. I asked if this would include interviewing the resident who has made the allegation. She said she 'thinks' so but isn't sure as she doesn't know how they carry out their investigations.
Hello, at this point in time your position in this job will be quite vulnerable. That is because if you have been continuously employed at your 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 their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because you were trying to assert any of your statutory rights (e.g. requesting maternity/paternity leave, etc.).
If the dismissal had nothing to do with any of the above exceptions then you would not be able to challenge it and your only protection would be if you were not paid your contractual notice period, because unless you were dismissed for gross misconduct, you would be entitled to receive your contractual notice period. If you did not have a written contract in place you would be entitled to the minimum statutory notice period of 1 week. Your employer would either have to allow you to work that notice period and pay you as normal, or they will have to pay you in lieu of notice.
So the employer could legally dismiss you without having to prove your guilt in any way simply by issuing you with notice of termination. It does not mean that they will but they can do so bear that in mind.
If you did have more than 2 years’ service with them, the protection against unfair dismissal would mean that they have to follow a fair procedure, investigate the allegations and then form a genuine belief you were guilty before you could be dismissed, but unfortunately none of that is relevant at this stage and it is still the above that would apply, until August at the earliest.
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? Thanks