Extra care needed when dealing with disciplinary allegations

For anyone working in a care home putting vulnerable residents at serious risk of harm is perhaps one of the worst allegations they can possibly face.

Helen was horrified when such an allegation was levelled against her just 10 months into a new job. She was suspended from work for regularly sleeping on duty.

The evidence against her amounted to a statement from a senior colleague saying that she had often witnessed Helen sleeping during the night shift.

There were no details such as dates and times or corroborating statements from any other colleagues.

When Helen contacted the Castle Associates Employee Support Centre for help she was understandably concerned, anxious and extremely worried.

Our representative discussed the case with Helen and he was immediately troubled by the lack of evidence to support the allegation and subsequent action taken by the employer.

Helen had been invited to a disciplinary hearing to face an allegation of putting the health and safety of residents at risk by repeatedly sleeping on duty.

The letter inviting Helen to the hearing provided a copy of the company’s disciplinary policy, which listed sleeping on duty as a potential act of gross misconduct, which could lead to dismissal.

Our representative in reviewing the case with Helen discovered that she had previously raised medication errors with management, which had not been investigated or addressed.

Helen had done so verbally and also documented concerns in writing to the senior colleague, now making the allegation against her, but no action was ever taken in relation to it.

Our representative believed that in the circumstances it was reasonable to class Helen as a whistle-blower.

This was significant in Helen’s case because as she had under two years’ service she could not make a claim for unfair dismissal if she was sacked.

There are significant exceptions to the general rule on qualifying service and there are other claims linked to dismissal which have no qualifying service requirement (such as a unfavourable treatment for whistle-blowing).

A whistle-blower is an employee who reports serious wrongdoing at work, known as a protected disclosure, which can include putting the health and safety of others at risk.

A whistle-blower is protected by law and should not be treated unfairly or lose their job because they ‘blow the whistle’.

Coincidentally, the allegation against Helen was made after she sent a text message to her colleague to alert her to another medication error that she intended to report to the owner.

Our representative felt that there was evidence to highlight that Helen was being subjected to unfavourable treatment for being a whistle-blower. As a result a formal grievance was submitted to the employer on these grounds.

The employer was asked to suspend the disciplinary process and address the grievance first, as it could have serious ramifications for the disciplinary process if it was upheld.

The employer refused and insisted the grievance was in fact Helen’s mitigation and it would be treated as such. Our representative objected, but the employer was adamant that is how it would proceed.

At the disciplinary hearing our representative made it clear Helen had a grievance and it should be treated as such. He presented evidence provided by Helen of when she had raised medication errors and a copy of the text message she had sent.

Regarding the disciplinary case, it was argued that there was no evidence in the form of dates and times when Helen was alleged to have been asleep and no support whatsoever for the allegation.

The motivation for the witness raising the allegation and timing of it were highlighted to the disciplinary hearing chair as a concern.

Following the hearing Helen was cleared of any wrongdoing. When she returned to work her senior colleague had been suspended and Helen was asked to be a witness in an investigation into her. The colleague never did return to work.

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For free employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 0333 772 0611