Invetsigation of Gross misconduct

[Trogman]

Hi All,
My partner has been suspended with pay on grounds of gross misconduct and is fretting despite having done nothing wrong, shes also pregnant.

The initial suspension was communicated verbally and then followed up in writing. In this letter she was expressly forbiden from entering work or from making contact with any other emploee or from discussing the matter with any employee. The letter did not provide any further details. Can they forbid you from speaking to anyone in your own time or is it just speaking about the allegation that this applies to?

A subsequent letter has been recieved asking her to attend a Investigation Hearing. This letter states that her statutory right to be accompanied does not apply however she may take a fellow employee.
This has been challenged and they have accepted that a Union official would be allowed to attend.
Unfortuantely due to this calrification only being provided late the union official cant attend.
She has asked for the following to be be able to attend.
Line Manager ....work has refused to permit this even through investigation is being done by others.
Collegue...work has refuse on the grounds that they have been interviewed as part of the investigation.
Other collegue... Manager has refused as one member of the interviewing panel has lodge a seperate complaint about that individual.
There is no-one else within work that she feels she could trust.

Whilst I accept that this is an investigation meeting (the letter is worded as Hearing), they have offered the right to be accompanied and are then restricting the people that can attend. But for the fact that we challenged the Union issue she would be all alone.

The letter also states that they believe attendance is a reasonable request in paid works time and that failure to attend would be treated as misconduct. This is incorrect as the meeting is scheduled for daytime and my partner is a night worker.

She has been told what the complain is but has not been told when it relates to, or who else has provided statements.
Any tips on what she should/shouldnt do? She

[poppynurse]

Can she reschedule for when the union rep is available?

What is the allegation against her?

[Trogman]

Hi, Unfortunately the hearing/meeting was today and as we only managed to get clarification, that under policy, that the union were allowed to attend on Monay, it was too late and they were booked up.
I know we could have posponed the meeting but it could/would have been seen as a delaying tactic or an admission of guilt.

The allegation is of verbal and physical abuse in relation to a resident within a care home. As its abuse this has other implications under new regulations.

The meeting has taken place and information has been provided of the events from my partners perspective.

At the end of the meeting the interviewing manager advised that there will be another meeting which will be notified in writing and that various parties would be required/invited to attend ie Manager, HR, Acused, Union, Others.
When asked was this a disciplinary meeting, work replied no, but would provide no further clarification as to its purpose.
Hopefully this has been minuted, if not it will be contested.

I supose they could be moving to a discipinary hearing which would then make the descision of whether action is taken.
Either way theyve now provided some additional proceedure/policy information that weve been requesting since this all started which I will review.
No doubt I'll be back shortly as I have a bad feeling about the way they are taking this. If so then Im not afraid of fighting back.

[Trogman]

Now weve finally got a copy of the proceedures etc it looks like they are moving straight to stage 4 of the proceedure and will probably attempt to to achieve summary dismissal.

Looking through the proceedures there are quite a few failings at this stage:
1. Suspension given by phone & letter, rather than at a meeting to explain the allegation, also no union or other present to support.
2. Not clearly advised of the full details of the allegation
3. No provision to respond to the allegation at time of suspension
4. No support provided during the suspension
5. Misleading communications.

As stated they advised at yesterdays meeting that there will be another meeting which Im assuming will be a hearing (not sure how they can do this as this without first reviewing all info unless there is a clear breach. It would suggest they had already decided). Hopefully this next stage will provide the facility to properly prepare and obtain additional statements etc although Im not sure how this will work.

Interestingly the third party who was present made the comment that the statements she had where not united in the issue.

If they move to summary dismissal then we will have little option but to appeal subject to the infromation presented.

My big concern is this that if they do decide on summary dismissal then my partner will not be entitled to any state benefit, and will only be entitled to state maternity pay. Also the amount of additional stress this will out her under is not good.
It will also mean that she is unable to return to her profession or any other of a similar nature after pregnacy.

Any advice would be really appreciated.
I accept that if shes done something wrong then they have the righth to take appropriate action, but I really think they her as a scape goats to improve relation with the third party and also to manager my partner out of the business.

[poppynurse]

With an allegation of abuse against a vulnerable person the employer has to err on the side of caution and suspend immediately. Only certain senior managers/employees have the power to suspend - that may be why it was done via phone.

If this allegation is proven I would be surprised if they did not dismiss for gross misconduct, indeed they are obliged to to protect vulnerable persons. Have the police been involved?

As you say a dismissal for these reasons will prevent her from working with vulnerable people in the future via list 99 and possible CRB implications.

Hopefully an employment specialist will be along shortly to clarify the procedural points.

Given the seriousness of the situation I would be wary of attending further meetings without union representation, even if that means meetings have to be postponed to allow this to be arranged.

[elche]

A few questions 1st.

Employee's length of service before the suspension? Is there a POVA investigation?

If so you may well have to be suspended until the outcome of that.

As for procedure - you can be suspended on full pay verbally, an investigation meeting is an informal procedure and no legal right to be accompanied exists.

You should be given 48hours notice of Disc Hearing, made aware of allegations, and provided with any documents e.g. witness statements that they intend to use at the Disc Hearing. You have a right to be accompanied at a Disc Hearing by TU rep or work colleague.

The employer can hold as many investigation hearings as they want in order to clarrify the facts. In your case the result of the POVA investiagtion and whether there is proven breach of Care Standards will be crucial.

[Trogman]

Thanks for replies so far.

Poppynusre I share your view that because it an abuse alegation they will state gross misconduct and then move straight to summary dissmissal.

In answer to other questions:
Legth of service is 11years with unblemished record (not that this counts under gross misconduct)
Weve asked about POVA and all they are sying is they havent yet, guess there waiting the outcome of dissiplinary. Company policy states that they should notify POVA at suspension stage.

Policy is also clear that suspension should be verbally at a meeting with support and that the right to being accompanied extends to Union rep at all meetings investigation & disciplinary.

Unfortunately what consitutes abuse is still a very grey area and training with the staff has only just started.
Physical abuse alegation> My partner strongly believes she assisted the person to move by agreement and using a safe method. She and her collegue did not lift or move only provided support the same as on previous occassions.
Verbal Abuse> The person had put themselves into the position several times and then expected the staff to resolve. I can see that frustration would have been an issue but I cant see any comment in my partners statement being abusive.

Is there anywhere/one I can contact to check the method of support provided and also the communication out before the hearing. Im not convinced that teh Union rep will be totally familiar!

[poppynurse]

If you want to PM me the exact circumstances of the move and how the person was assisted I will advise. Is the allegation assault by using an inappropriate manual handling technique? What manual handling training has been provided?

Likewise with the verbal comments.

(I am a manager in health care with significant nursing experience in both NHS and nursing homes).

[elche]

Acas will give you non-tailored advice . i.e. what the law says.

08457-474747.

Your company is applying best practice as regards allowing a TU rep at an investigation meeting, they do not have to do this.

At a disc hearing a rep can as per ACAS:

The accompanying person can address the meeting, but not answer questions on behalf of the worker unless this is agreed by management

As to communication out before the disc hearing. You are entitled to 'reasonable notice' best practice would be minimum 48hours, and you should have received in writing details of allegations in sufficent detail to allow you to prepare a defence and also any documents that your employer intends to rely upon.

Are you in a Union?

[poppynurse]

The Green Book (Royal College of Nursing Manual Handling Manual) sets out correct moves and 'banned' moves.

Given what you have told me via PM this move was not unacceptable and speaking firmly with someone is not verbal abuse. In fact I would have thought there was a duty to inform the resident that their behaviour was putting themself and others (carers) at risk. I take it the resident has mental capacity.

Which union is your wife in?

Do you know what the other carer has said in her statement?

[littlebea]

Gosh! i just want to say how terrible this all sounds - your wife must be under immense stress, and pregant too. The POVA thing is also very serious. Many many care workers, social workers etc have had allegations - true and untrue- lodged against them and i think it is becoming more and more common, i wonder if they do ever get similar work again? I really really feel for her.

If they continue to put her through this i say fight it viciously to the very end - challenge them on every point they make and point out some failings on their part too!

[Trogman]

Thanks for all the input.
As you can imagine my wife has not slept properly since this all started and is obviously very worried. This isnt good during early pregnancy and Im doing all I cant to support her.

Initially when she was suspended she didnt realise the implications and work didnt and still hasnt bothered to explain.
When asked about POVA listing they just laughed and said dont worry about it.
Its only because I work in an industry where policies, proceedure and emloyment legislation are critical that I looked into things further and thats when I found out about the POVA regs and figured out where this was being driven.

Im still awaiting a call back from Unison as I want them to visit the house when Im there to discuss the case. I want to make sure she has the best representation possible and someone who is familiar with this type of allegation, pova, and the consequences and implications of not being represented properly.

If she is dismissed then unfortunately because of POVA regulations she will not be able to return to carework/nursing of any kind and her employment, and any voluntary work (youth work) will also be very effected as POVA is also listed against CRB checks.
Her only options would be to retrain or look for factory work.

As for the company dealing with the matter via best practice, this is admirable and good to see. Just a pity that they havent implimented the policies properly or followed the proceedures. In not doing so have casued additional worry and stress and have provided a clear case for a grievance to be lodged. HR has confirmed this. If we lodge it now though it will only delay the disciplinary.

Disciplinary hearing date hasnt been set. Policy says 7 days notice with all documentation being provided.
Id imagine it will be in the next 3 weeks as the person I think will head the hearing has just gone on 2 weeks leave.
Policy allows for individuals to be interviewed and additional statements obtained. This will be interesting with only 7 days notioce, aslo according to the letters recieved so far shes forbidden from making contact with anyone at work! I suppose that this could be arranged through the "support collegue" provide. Ooops thats one of the thngs theye also forgotten. They are supposed to provide one from the point of suspension and havent.

As for the collegue who was on shift at the same time. She is still working and no action has been taken or advised. I guess they will await the final verdict and then go after them as well.

[poppynurse]

Just something to bear in mind - they are being hot on procedures/policies in relation to this but what about their manual handling policy - is it up to date? Is all training up to date? Is it reasonable to expect a pregnant lady with no qualifications to be in charge of a 40 bed residential home with only one other staff member on duty (Not sure where you'd get this info ?social services?). What risk assessments have been done in relation to manual handling and in relation to pregnant workers manual handling.

Whilst the first line of defence is not guilty the second would be the companies lack of preparation of your partner for handling the situation ie she had not been taught what to do so she did the best she could.

[Trogman]

I think the company is uptodate (hot) with proceedure just they they dont appear to get adhered to by the managers!
Manual handling is sometimes run externally but usually by the managers.
A risk assessment was undertaken in relation to pregnacy.
As its early days she was given the option to sitch to day shift (she prefers nights) she was also told that later in pregnacy they will provide additional member of staff.
I dont think they have done any specific risk assessments in relation to doing the job whilst pregnant. I understand what youre saying though if she not been taught then this responsibility woud sit with the employer as she wouldnt know any different.

Also need to be a little careful "Is it reasonable to expect a pregnant lady with no qualifications to be in charge ".... could this lead to demotion or redundancy.

[poppynurse]

Originally Posted by Trogman

Also need to be a little careful "Is it reasonable to expect a pregnant lady with no qualifications to be in charge ".... could this lead to demotion or redundancy.

I would just be concerned that the company have avoided the expense of putting your partner through her NVQ. It has been good practice for a number of years for carers to be encouraged to undertake this qualification, particulalry senior carers. It just gives me the impression of a company that is tight with it's money.

[Trogman]

I woulnt want to comment on how they manage thier money, although I have my views, but I do think its a little unfair when other collegues who have not been there as long are put forward for training whilst others arent. I could do with finding out what the selection criteria is.
Its also a bit of a joke really as the company openly advertises its nationally approved training scheme which is unrivalled in the care sector and the fact that thye are IIP accredited.

[Trogman]

Latest update:
Theyve now done their investigation the final part of which was to interview my partner.
Needless to say this was a cock up as they initially wouldnt allow Union represetation despite it being detail in thier proceedure as a right.
We got the phone call to say ok 2 days before the meeting by which time it was too late, and they then tried to limit which collegues could attend.
We got the minutes of the meeting and lots was missed out or was worded in such a way that it was open to interpretation. Weve now asked for ammendments to be made.

Today shes recieved a phone call asking her to attend a meeting next Friday and that it will be a Stage 1 Disciplinary meeting and that a letter is on its way! Not sure that a phone call constitutes 7 days notice but thats another issue.

The invite also implies that theyve already made there minds up before the meeting of the action without actually having a hearing.
I'd have thought that they should have the meeting/hearing and then decide!

Im also not sure why this appears to have now gone from a Gross Misconduct issue down to something that they believe requires at most a verbal warning, needless to say well be objecting and then appealing all the way to tribunal if they continue.

Its also interesting that someone from the organisation has apparently been speaking to all the staff asking how they assist various people to move and all have said they use the same method!.
From this they I'd assume that thay now just want to take issue with the way the person was spoken too.