Picture perfect ending to an unsightly disciplinary case

There is a saying that a picture is worth a thousand words, but in Esther’s case it meant one thing - trouble. 

Night carer Esther is alleged to have been fast asleep when a colleague took a snap of her leaning back in a chair, eyes closed. 

At the time Esther was tasked with observing an elderly resident who was deemed to be at risk of injury. Esther was suspended from work 

Shocked Esther, who had six years’ service, insisted that she had not been sleeping.  

Esther was later invited to an investigation meeting as part of the disciplinary investigation process.  

At the meeting it was alleged that Esther would regularly sleep on duty. She denied the claim. Esther was not shown the picture said to show her asleep. 

Aggrieved Esther felt that she was being set up for previously reporting staff for using their mobile phones on duty. She was labelled a ‘grass’ for doing so. 

However, she was invited to attend a disciplinary hearing to face an allegation of repeatedly sleeping on duty. Dismissal was a possible outcome to the hearing. 

The evidence provided to support the allegation included witness statements from two colleagues. One witness had taken the picture, and both claimed Esther was well-known for sleeping on duty.  

The image said to show Esther asleep was not provided with the evidence. The employer claimed it was for ‘data protection reasons’. Esther was told she could view it on the day of the hearing. 

Staff at the home had previously been warned about sleeping on duty and a number had been caught and dismissed. 

Desperate Esther contacted the Castle Associates Employee Support Centre for help. 

Our representative had concerns about the evidence provided, which clearly did not support the allegation. 

He discussed with Esther the implications of staff using their phones, which she had reported. She explained it was considered a distraction by management that could impact on the care of vulnerable residents. 

Esther reported mobile phone usage via email on a number of occasions and had only ever had one response. 

As staff use of mobile phones posed a health and safety risk to residents our representative believed it was reasonable to consider Esther a whistle-blower. 

It was felt that given the concerns raised by Esther and the lack of evidence to support the allegation it amounted to unfair treatment for being a whistle-blower. 

It led to a formal grievance being submitted on Esther’s behalf.  

The grounds for grievance included unfavourable treatment for whistle-blowing and disciplinary evidence – the picture of her allegedly asleep - being unreasonably withheld. 

A request was made to suspend the disciplinary process in accordance with section 46 of the ACAS Code of Practice. The employer refused to do so, but did provide the picture it said showed Esther asleep. 

At the disciplinary hearing our representative’s comprehensive response to the allegation included Esther’s email reports of staff using phones, the lack of evident responses, company policy banning use of phones on duty and reference to the whistle-blowing policy. 

The picture said to show Esther asleep was taken from in front of her, it showed her leaning back in a chair, with the two front legs clearly off the ground and her face was not visible.  

Our representative politely said it was ridiculous to consider it credible evidence of Esther being asleep. 

He also told the hearing that there was no evidence of Esther repeatedly sleeping on duty. It was a claim simply made by the witnesses with no tangible evidence such as dates and times. 

The disciplinary hearing was informed that Esther loved her job and cared deeply for the residents, and she was keen to work with the company to deal with any issues highlighted during the case. 

Esther was asked a number of questions about the allegation. After the hearing was adjourned and later reconvened she was cleared of the allegation. 

“A reputation built on success”  

For 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