Possible constructive dismissal ?

[Dansdad]

Hi,

I would appreciate some advice on a problem that has been going on for some time but has now come to a head.

 

My wife works as a nurse in a local practice which is dominated by a very aggressive senior nurse. The problem started about 18 months ago when patients started complaining because the nurses weren't starting work on time. They were supposed to start at 8.30 but always had a 15 min fag break before starting which the patients, quite understandably, didn't appreciate. My wife went and had a quiet word with the practice manager to see if he could get it stopped but in an inexcusable breach of confidentiality, he told the senior nurse of my wife's action. Things just deteriorated from there on in.

 

About a month ago, she received quite a nasty email from this women full of venom and bile. At roughly the same time, she inadvertently saw a email sent to another nurse which referred to her as a idle f*****g bitch as well as a few other choice expletives. At this point the working environment could only be described as very hostile.

 

My wife showed the practise manager this email as an example of what her working environment had become but stressed that she didn't want him to take action as she shouldn't really have seen it. He ignored her request and got the senior nurse in the office and told her to leave the Mrs alone. She ignored this instruction, took my wife into an office and gave her a good roasting leaving her in tears. At this point she was ready to quit but as she walked away, she bumped into the boss who wanted to know what was happening. He couldn't believe what he was told and had the senior nurse in again but what was said we don't know.

 

Thinking that things were only going to get worse, I advised my wife that if the said email account was left open again, then she should get the email as potential evidence. It looks like this might have been a mistake !

 

Anyway thereafter, the working environment became almost intolerable.

The 3 nurses cold shouldered my wife, refused to speak to her and walked out the room when she walked in In addition, the nurse who received the email was continually badgering the manager to find out who had accessed her account.

 

At this point, I should say that there had been a meeting with the manager, the senior nurse and one of the doctors where my wife was asked point blank if she'd accessed the account again. Under the intimidating stare of the senior nurse and with the practice manager intimating of dire consequences if she had, she denied it.

 

Back to the plot ! The practise manager insisted that my wife go and apologise to the nurse who's email account the original mail came from. This she did in order to try and allevaite what was an intolerable work situation. The nurse in question harangued and badgerd the wif einto admitting that she accessed her account for a second time on the promise that it would go no further, which of course it did.

 

The practise manager has now asked her to resign for gross misconduct. If she doesn't resign then she'll be suspened on full pay pending an investigation but in his own words 'Come what may you'll not be working her anymore'.

 

We can't help but feel that the whole charade was orchestrated to get just this outcome and really could do with some advice as to what to do next.

 

My wife has never had any disciplinary problems before and has worked at the practise for 9 years with minimal sick time.

 

Thanks

 

Ron

[Cazz22]

Hi, I work in HR - and am doing the CIPD qualifications in HR - so I might be able to give you a little advice.

 

Firstly, the fag break before they start is known as "custom and practice", ie the way things are done around here - which to stop this would invlove consulatation with all teh staff and ultimately negotations on who they can change this. Your wife was right to go to the practice manager and see if there was any way to change this, he was wrong in saying it was a breach of confidentialty - whos confidentialty??

 

From my point of view she needs to put in a grievance against the perosn doing the bullying to the person above the practice manager and see if that can help - she should not have to work in an environment like this and I sure wouldn't! I would say DO NOT hand your notice in! As for gross Misconduct - they should have it written down to say what constiutes Gross Misconduct. I dont think anything that your wife has anything to worry about - from what you have said she has doen anythign that would constitute gross misconduct.

 

A disciplinary is NOT a punishment!! It is supposed to correct behaviours and a chance for the mangement to offer help.

 

I would suggest that you have a look to see if they have disciplinary and grievance procedures in place - they should do if they dont they have to follow the government basic procedure.

 

I thi nk if they dismiss your wife then she would have a good case for unfair dismissal!!

 

Hope this helps!!

[Dansdad]

Thanks for the reply Cazz22. I think its telling that one of the other nurses commented 'I'm surprised you put up with it for so long, most other people would have gone off sick long ago'.

 

I'll give you another example of the type of behaviour she's been enduring.

 

On the day of her grandfathers funeral, she wasn't allowed the afternoon off as the senior nurse was having her hair done but when she went in to work at 4.30 she got a roasting for looking miserable and was reduced to tears ! This was reported to the practise manager but again nothing effective was done.

 

Needless to say we are both feeling pretty stressed out at the moment !

[Cazz22]

It could be a good idea to go off on the sick with Stress - then at least if it does go to Tribunal then you have proof she has been off with Stress!!

 

I assume it is a small practice and they dont have any HR advice as such! Its such a mine field - I really wouldnt like to advise exactly what to next - it might be worth taking some legal advice- some of them do free half a hour chat and advice.

[bed32]

I think that you have to be very careful how you approach this one.

 

You imply that she accessed another member of staff's email without permission and in some circumstances that could be argued to be gross misconduct.

 

Even if that is a smokescreen to hide other reasons if the practice handling it carefully and follow a reasonable procedure I think you might have problems winning an unfair dismissal claim.

 

Since you mention constructive dismissal does that mean that she wants to find another job? If so she should consider coming to a compromise agreement. If they go down the disciplinary route then it is going to get unpleasant so if she can avoid that by getting a job elsewhere then that must be worth considering.

 

I don't think the constructive dismissal idea will work at this stage - it might be taken that she had left because she had been told of the impending disciplinary hearing.

[Sidewinder]

You say that your wife received an e mail 'full of venom and bile' and has seen one (and it was witnessed by the boss) which was derogatory and offensive? The Practice Manager has had cause to tell the Head Nurse to back off? He has also had cause to warn her on at least one other occasion? Why on earth is your wife being accused of Gross Misconduct? Is it not a more clear brach of disciplinary rules to misuse the Practice's e mail facility for transmitting potentially libellous and downright offensive tittle tattle about a colleague? The proper way of dealing with workplace disputes is through a grievance process, not e mail!

 

This needs to be looked at on two levels. What rule has she broken? Seeing an e mail which somebody else left open on screen? Has she breached any rule or policy stated in her contract or in a published list of Terms and Conditions? She can only be disciplined for Gross Misconduct if she has actually broken a rule, or carried out some action which would be obviously a breach of her T&Cs. Furthermore there is an issue with regard to procedure. Your wife is entitled to proper written notification of what she has done wrong, given a date for a hearing at which she should be warned what sanction might result and given the right to be accompanied, and a right of appeal after that meeting has been held. Anything less and the action taken is automatically unfair. How therefore can the Manager tell her that she will 'not be working here any more' before carrying out proper legal process? Under no circumstances should your wife resign. She has legal rights which would be nullified if she voluntarily terminated her employment.

 

In addition to the matter of potentially unfair dismissal, there is the equally distasteful actions of your wife's colleagues. In anybody's language this would constitute bullying and harassment and your wife should be afforded the protection of her employer against this kind of treatment. There are very clear obligations on the employer to provide protection from harrassment, and to treat the employee with dignity. It strikes me that the employer is listening to she who shouts loudest and scares him most.

 

Your wife needs to make a detailed list of every incident she can think of, who witnessed it and what was said. She then needs to raise this in the strongest terms as a formal grievance and stating her dismay at the unceasing bullying and harrassment she has been subjected to, and that any attempt to remove her without her grievance being addressed will be vigorously defended.

 

I agree to an extent with the above post, but has your wife actually agreed that she has 'accessed' somebody's e mail, or just that she has 'seen' somebody's e mail? She could of course deny ever having admitted anything at all if she was bullied into admitting it anyway. I also agree that to ask for a compromise agreement at this stage would be futile, but do think that areas of improper procedure and a lack of care on the employer's part need to be addressed. A period of sickness due to stress might well add weight to any later action if she is forced out of work through bullying with a lack of support from above.

 

This may ultimately need some professional legal advice, but insofar as the immediate needs are concerned, your wife needs to know exactly what she is accused of in accordance with statutory minumum disciplinary procedures.

[Dansdad]

I think that you have to be very careful how you approach this one.

 

You imply that she accessed another member of staff's email without permission and in some circumstances that could be argued to be gross misconduct.

 

Even if that is a smokescreen to hide other reasons if the practice handling it carefully and follow a reasonable procedure I think you might have problems winning an unfair dismissal claim.

 

Since you mention constructive dismissal does that mean that she wants to find another job? If so she should consider coming to a compromise agreement. If they go down the disciplinary route then it is going to get unpleasant so if she can avoid that by getting a job elsewhere then that must be worth considering.

 

I don't think the constructive dismissal idea will work at this stage - it might be taken that she had left because she had been told of the impending disciplinary hearing.

 

Thanks for taking the time to construct an informative reply.

 

In answer, yes she does want another job and there is no way in hell she would want to go back to that intolerable atmosphere. A compromise agreement may well be the right approach and obviously would save a lot of nastiness. How is such an agreement brought about ?

 

Thanks

 

Ron

[Dansdad]

You say that your wife received an e mail 'full of venom and bile' and has seen one (and it was witnessed by the boss) which was derogatory and offensive? The Practice Manager has had cause to tell the Head Nurse to back off? He has also had cause to warn her on at least one other occasion? Why on earth is your wife being accused of Gross Misconduct? Is it not a more clear brach of disciplinary rules to misuse the Practice's e mail facility for transmitting potentially libellous and downright offensive tittle tattle about a colleague? The proper way of dealing with workplace disputes is through a grievance process, not e mail!

 

Yes you are indeed correct. The sending of abusive emails is gross misconduct but the perpertrator was let off with just a warning. Guess its one rule for one and another for someone else. The woman was also 'let off' the bullying charge.

 

This needs to be looked at on two levels. What rule has she broken? Seeing an e mail which somebody else left open on screen? Has she breached any rule or policy stated in her contract or in a published list of Terms and Conditions? She can only be disciplined for Gross Misconduct if she has actually broken a rule, or carried out some action which would be obviously a breach of her T&Cs. Furthermore there is an issue with regard to procedure. Your wife is entitled to proper written notification of what she has done wrong, given a date for a hearing at which she should be warned what sanction might result and given the right to be accompanied, and a right of appeal after that meeting has been held. Anything less and the action taken is automatically unfair. How therefore can the Manager tell her that she will 'not be working here any more' before carrying out proper legal process? Under no circumstances should your wife resign. She has legal rights which would be nullified if she voluntarily terminated her employment.

 

I think that they are alluding to theft (of the email) and dishonesty as the grounds for gross misconduct but yes the recipients account was left open for anyone to browse. And at no time has she had anything in writing. Even the hearing at which she was suspended pending dismissal, she was not made aware of the gravity of the situation otherwise would not have gone in alone.

 

In addition to the matter of potentially unfair dismissal, there is the equally distasteful actions of your wife's colleagues. In anybody's language this would constitute bullying and harassment and your wife should be afforded the protection of her employer against this kind of treatment. There are very clear obligations on the employer to provide protection from harrassment, and to treat the employee with dignity. It strikes me that the employer is listening to she who shouts loudest and scares him most.

 

Duty of care by the employer was clearly lacking that's true. But the practise is run by the senior nurse with the manager as her puppet. She is a very strong character but nasty when crossed.

 

Your wife needs to make a detailed list of every incident she can think of, who witnessed it and what was said. She then needs to raise this in the strongest terms as a formal grievance and stating her dismay at the unceasing bullying and harrassment she has been subjected to, and that any attempt to remove her without her grievance being addressed will be vigorously defended.

 

I agree to an extent with the above post, but has your wife actually agreed that she has 'accessed' somebody's e mail, or just that she has 'seen' somebody's e mail? She could of course deny ever having admitted anything at all if she was bullied into admitting it anyway. I also agree that to ask for a compromise agreement at this stage would be futile, but do think that areas of improper procedure and a lack of care on the employer's part need to be addressed. A period of sickness due to stress might well add weight to any later action if she is forced out of work through bullying with a lack of support from above.

 

She's seen a private consultant and her own GP with stress related illness and the solution was to give her more pills !

 

This may ultimately need some professional legal advice, but insofar as the immediate needs are concerned, your wife needs to know exactly what she is accused of in accordance with statutory minumum disciplinary

procedures.

 

She's seeing the RCN union rep on Friday morning for advice and then depending on the outcome will maybe seek legal advice.

 

What really brasses me off is that the Practise Manager has told her that there is no point in appealing or going to a tribunal as she'll lose anyway and that it would be in everyone's interest if she resigned so that he could advertise for another nurse to fill her position. Judge, Jury and executioneer it would seem !

 

Cheers

 

Ron

[Dansdad]

Sorry people, I realise that I haven't been very clear over the issue of the emails which led to the suspension pending dismissal.

 

The email was first accessed totally innocently as the wife had no idea that she wasn't logged onto to the system. When she saw its contents she brought it to the attention of the practise manager as an illustration of what she was up against. The PM advised that it was gross misconduct and took the senior nurse in for a warning. The email was then discarded.

 

Following this the SN called an impromptu meeting with 4 other nurses, stopping all clinics in the process. The outcome of this was that my wife was sent to coventry and worked in an increasingly hostile environment.

It got so bad that she was in tears most mornings before going to work.

 

It was clear that the situation was never going to improve so when the opportunity arose again she took another copy of the email as 'evidence'.

 

It is this point on which hinges the gross misconduct claim - that she deliberately accessed someone else's inbox even though it had been left open.

 

In her defence, she was that stressed out that I don't think she really knew what she was doing, not that that's any defence.

 

The only think in her contract about emails is the following paragraph

 

'The use of this email facility is for practice purposes and you should not under any circumstances use the email system to transmit any material which is offensive or obscene, untrue or malicious, in breach of copyright or defamatory. You should understand that any such use of the email system is likely to constitute gross misconduct'

 

Cheers

 

ron

[Sidewinder]

'The use of this email facility is for practice purposes and you should not under any circumstances use the email system to transmit any material which is offensive or obscene, untrue or malicious, in breach of copyright or defamatory. You should understand that any such use of the email system is likely to constitute gross misconduct'

 

So there is no case for Gross Misconduct against your wife on those grounds, but an explicit one against the Senior Nurse for using the e mail facility for transmitting malicious and defamatory content regarding a colleague. They cannot possibly discipline your wife for accessing a PC that was already logged on and left open for anybody to see.

 

Under ACAS guidelines, the fact that the Practice Manager has pre-judged any hearing by stating that she will be suspended, she will lose at a Tribunal and has no chance of winning an appeal will make any later dismissal automatically unfair. He is, as you are suspecting acting as if he is above the law. Remember, in order to discipline or dismiss, there must be:-

 

Written notification of a proper disciplinary meeting and details of the allegation, together with details of any possible sanction in the event that the investigation and evidence lead to action being taken.

 

A right to be accompanied by a TU Rep or colleague.

 

A written confirmation of the outcome of the hearing.

 

A right to appeal.

 

He doesn't know what he is doing :o

[bed32]

Clearly the manager does not know what he is doing - which is a bit of a problem. In general the better the HR department is the more reasonable they are prepared to be in resolving issues like this, and reaching a compromise if necessary.

 

Clearly the manager is not following acceptable procedure. That would render any dismissal procedurally unfair however (i) if they allow an appeal that could be seen as remedying any procedural unfairness to date and (ii) You really don't want to go to an ET claiming purely procedural unfairness, if the dismissal itself is held to be substantially fair, any compensation would not be worth the stress involved.

 

There are certainly many environments in which the deliberate accessing of someone else's email would constitute gross misconduct. In this case from what you have said it probably does not; but that is not to say that with careful wording of the investigation the manager could not make a case for gross misconduct that would hold up. A lot may depend on details that we don't know - specifically if said manager made any comment at the time about how the email was obtained.

 

Unfortunately the Manager clearly thinks his position is much stronger than it really is and that makes it hard to come to a compromise. However since he has already suggested resignation it is possible to ask "How much will you pay me to go away?".

[ScarletPimpernel]

I agree that the Practice Manager seems to be ineffective. What about the Senior Partner? Have none of the doctors noticed strained relations amongst their nursing colleagues?

 

Does the PCT have any procedures that might be useful?

[Dansdad]

 

There are certainly many environments in which the deliberate accessing of someone else's email would constitute gross misconduct. In this case from what you have said it probably does not; but that is not to say that with careful wording of the investigation the manager could not make a case for gross misconduct that would hold up. A lot may depend on details that we don't know - specifically if said manager made any comment at the time about how the email was obtained.

 

There's nothing in her contract that says accessing another's email constitutes gross misconduct but I think you are correct in that manager will somehow make it fit.

 

Bear in mind also that this wasn't hacking or stealing a password, the system was open for anyone to use although I'm guessing this isn't relevant ?

 

Incidentally said manager has now sent an email to all his employees telling them that my wife has been dismissed and why. Those that have seen it, believe it is libellous in the extreme. We are currently trying to obtain a copy.

 

Cheers

 

Ron

[Dansdad]

I agree that the Practice Manager seems to be ineffective. What about the Senior Partner? Have none of the doctors noticed strained relations amongst their nursing colleagues?

 

Does the PCT have any procedures that might be useful?

 

Unfortunately there is no senior partner just 4 equals and the practice manager claims that he already has their approval based on my wife's admission that she copied off the email.

 

Amazingly none of the doctors were aware of the deteriorating situation until near the very end when my wife went and asked for a reference and they wanted to know why ! Since then she has seen one of the doctors for a stress related complaint and she was very supportive.

 

My wife is seeing the RCN rep tomorrow and is going to insist on legal advice. If the union won't pay, then I'll pay privately just to see where she stands. Folling that, my wife is going to talk to her contacts in the PCT.

 

What really drives the knife home is that the senior nurse is now strutting round the practise as happy as larry, having engineered the dismissal of the only one who would oppose her. The fear is that she now thinks she invincible and one of the other staff has privately remarked that she thinks she's next on the hit list.

 

Cheers

 

Ron

[bed32]

There's nothing in her contract that says accessing another's email constitutes gross misconduct but I think you are correct in that manager will somehow make it fit.

 

Bear in mind also that this wasn't hacking or stealing a password, the system was open for anyone to use although I'm guessing this isn't relevant ?

 

Incidentally said manager has now sent an email to all his employees telling them that my wife has been dismissed and why. Those that have seen it, believe it is libellous in the extreme. We are currently trying to obtain a copy.

 

Cheers

 

Ron

Now I'm confused - I thought the investigation had not been completed and yet the manager is sending an email saying that she has already been dismissed? That is very bad - that must be grounds for constructive dismissal. If / when your wife is actually dismissed you will want to make a subject access request to get copies of all relevant emails.

 

I don't think the manager will be able to convince an ET that the actions amount to gross misconduct, but he could make a case. A lot will depend on other details. If all his actions were consistent with him believing that that is the case he would have a stronger case. If his other actions suggest some other reason (as they seem to) then an ET is highly unlikely to accept it. To that extent failing to investigate or follow a proper process is important.

 

It is relevant how much effort it took your wife to access the email - if the system was habitually left open then it implies that it was recognised that security was not important and therefore harder to justify calling the access gross misconduct.

 

Your wife absolutely must raise a formal grievance about actions both of the Senior Nurse and the Practice Manager, and if/when she is formally told that she has been dismissed she must appeal as well. Neither will do any good of course but they are necessary before approaching the tribunal.

[bed32]

On a related issue - do you know what the legal status is of the doctor's practice? There is a possibility that the costs of contesting the tribunal, and any awards made, will come directly out of the pocket of the doctors. If so then they will have a vested interest in making sure that this is settled as quickly/cheaply as possible.

 

If any of them are sympathetic to your wife's situation then a direct approach may be the best way to get a quick resolution.

[Sidewinder]

Now I'm confused - I thought the investigation had not been completed and yet the manager is sending an email saying that she has already been dismissed? That is very bad - that must be grounds for constructive dismissal. If / when your wife is actually dismissed you will want to make a subject access request to get copies of all relevant emails.

 

Likewise confused

 

What investigation has already been carried out which would cause the Manager to believe that the allegation is borne out by the facts? Even in a case of Gross Misconduct, Stat Procedures apply whereby the circumstances have to be investigated and a considered opinion reached. The only exception would be in a case where the act was so serious (for example certain acts of violence) that the facts speak for themselves.

 

I don't think the manager will be able to convince an ET that the actions amount to gross misconduct, but he could make a case. A lot will depend on other details. If all his actions were consistent with him believing that that is the case he would have a stronger case. If his other actions suggest some other reason (as they seem to) then an ET is highly unlikely to accept it. To that extent failing to investigate or follow a proper process is important.

 

The Manager would surely only be able to make a case if the published e mail policy was more specific - it makes no mention of 'happening across an e mail which was left on general view' but is specific in terms of what the Practice will consider to be misuse ie 'The use of this email facility is for practice purposes and you should not under any circumstances use the email system to transmit any material which is offensive or obscene, untrue or malicious, in breach of copyright or defamatory. You should understand that any such use of the email system is likely to constitute gross misconduct'. There is no generic clause stating 'or any other misuse of the e mail facility including xx, xx and xx.

 

It is relevant how much effort it took your wife to access the email - if the system was habitually left open then it implies that it was recognised that security was not important and therefore harder to justify calling the access gross misconduct.

 

Absolutely - I would go so far as to say that it would be almost impossible to allege Gross Misconduct in the absence of such security and adequate policy to control access. It will also be impossible from what the policy does say to explain why your wife should be diciplined for looking at an e mail (which is not covered by policy) yet the Senior Nurse received a lesser sanction for writing it (which is explicitly covered by policy as a matter of Gross Misconduct). Whether a case of Misconduct or Gross Misconduct, the employer's actions in opting for a disciplinary sanction must be reasonable in the circumstances, and consistent with the treatment of similar cases. To make his treatment of your wife 'reasonable' he would also have to dismiss the Senior Nurse.

 

Your wife absolutely must raise a formal grievance about actions both of the Senior Nurse and the Practice Manager, and if/when she is formally told that she has been dismissed she must appeal as well. Neither will do any good of course but they are necessary before approaching the tribunal.

 

Entirely correct. And worded so strongly that it leaves no room for doubt that the employer is likely to find it difficult to wriggle out of.

 

Gross Misconduct or not, what you have told us suggests that the employer has completely ignored your wife's legal rights. Even in the most serious of cases where it is obvious that dismissal is inevitable, a Tribunal will award damages for failure to apply statutory procedures.They will be lessened if it is apparent that the dismissal would have been made in any case, but nevertheless it is automatically unfair to fail to apply procedure. Unfair dismissal is usually the better option to pursue (in addition to wrongful (constructive) dismissal as the Tribunal has a greater scope to award punitive damages - constructive dismissal alone will only deal with the breach of contract and awards are limited to the direct loss to the employee as a result of the breach.

 

I am feeling increasingly angry at the treatment of your wife. She MUST follow this through.

[bed32]

I don't want to divert the thread into a discussion about what may or may not be construed as gross misconduct, I was just trying to point out that a case can be made that it was.

 

If I were the manager I would argue firstly that unauthorised access to the email system was a breach of the data protection act, and a violation of the individuals rights under the Human Rights Act. Furthermore that working in a GP surgery there should be a culture of confidentiality and I would be concerned that someone who breached the confidentiality of the email system might just as well breach the confidentiality of the patients records, which I am sure have no more protection round them. Finally you could argue that to access another individual's email caused a breakdown in the working relationship between the two. You could then either argue that this is just as much an abuse of the email system as those explicitly listed, or say that it is so obviously misconduct that it does not need to be explicitly listed.

 

A well-manipulated "investigation" and carefully worded conclusion, maybe distorting a few other incidents along the way and you have something an ET might accept as being reasonable.

 

At the very least the ET might accept that the accessing of the email was the real reason, even if they didn't agree that it merited dismissal, and so reduce any compensation on the grounds that she contributed to her own dismissal. As the manager I would find that a better (and cheaper) outcome than a tribunal saying I was dismissing her to cover up harassment and bullying.

 

I don't think the arguments would work, but it would be brave or foolhardy totally to discount them.

 

However for that argument to work the manager would have to make sure that all his actions were compatible with that. Prejudging the issue or failing to investigate properly would undermine what is already a rather weak case.

 

Particularly in this case the counter argument is that it was done in order to bring to light serious misconduct on the part of the Senior Nurse, and that justifies/mitigates the actions taken to gather the evidence.

[Dansdad]

Now I'm confused - I thought the investigation had not been completed and yet the manager is sending an email saying that she has already been dismissed? That is very bad - that must be grounds for constructive dismissal. If / when your wife is actually dismissed you will want to make a subject access request to get copies of all relevant emails.

 

I don't think the manager will be able to convince an ET that the actions amount to gross misconduct, but he could make a case. A lot will depend on other details. If all his actions were consistent with him believing that that is the case he would have a stronger case. If his other actions suggest some other reason (as they seem to) then an ET is highly unlikely to accept it. To that extent failing to investigate or follow a proper process is important.

 

It is relevant how much effort it took your wife to access the email - if the system was habitually left open then it implies that it was recognised that security was not important and therefore harder to justify calling the access gross misconduct.

 

Your wife absolutely must raise a formal grievance about actions both of the Senior Nurse and the Practice Manager, and if/when she is formally told that she has been dismissed she must appeal as well. Neither will do any good of course but they are necessary before approaching the tribunal.

 

Please accept my apologies for causing any confusion. I've had 7 hours sleep in the last 3 days and am very tired plus more information is coming in from her friends at the surgery.

 

She was told at her final interview that she was suspended on full pay pending an investigation but there was no point in appealing or going to a tribunal as she would lose. She was told that it was in her best interests to resign. The email he sent out apparently says that she's been dismissed and gives the resaons why. She has not been formally notified yet though.

 

Regarding the email system, yes the woman in question is continually leaving her system open for anyone to access. The staff are supposed to logoff when they leave their workstation but she's always forgetting. And yes it does mean that others could access patients records although it is in a closed off staff area.

 

Thanks for taking the time and troble to advise though in this difficult time.

 

Cheers

 

Ron

[Dansdad]

Absolutely - I would go so far as to say that it would be almost impossible to allege Gross Misconduct in the absence of such security and adequate policy to control access. It will also be impossible from what the policy does say to explain why your wife should be diciplined for looking at an e mail (which is not covered by policy) yet the Senior Nurse received a lesser sanction for writing it (which is explicitly covered by policy as a matter of Gross Misconduct). Whether a case of Misconduct or Gross Misconduct, the employer's actions in opting for a disciplinary sanction must be reasonable in the circumstances, and consistent with the treatment of similar cases. To make his treatment of your wife 'reasonable' he would also have to dismiss the Senior Nurse.

 

 

 

Gross Misconduct or not, what you have told us suggests that the employer has completely ignored your wife's legal rights. Even in the most serious of cases where it is obvious that dismissal is inevitable, a Tribunal will award damages for failure to apply statutory procedures.They will be lessened if it is apparent that the dismissal would have been made in any case, but nevertheless it is automatically unfair to fail to apply procedure. Unfair dismissal is usually the better option to pursue (in addition to wrongful (constructive) dismissal as the Tribunal has a greater scope to award punitive damages - constructive dismissal alone will only deal with the breach of contract and awards are limited to the direct loss to the employee as a result of the breach.

 

I am feeling increasingly angry at the treatment of your wife. She MUST follow this through.

 

We too can't understand why one flagraqnt breach of contract warrants only a verbal warning whilst the other iffy one results in dismissal. Well actually we do know why - he took the easy option to stop the bullying and harassment charges that my wife was presenting to him. The senior nurse does virtually all of his admin work so was far too valuable to lose. That of course is merely conjecture and cannot be proved !

 

Certainly take your point re unfair dismissal and thanks for clearing that up for me. When I first wrote about constructive dismissal I was thinking that she would have to resign so as to make sure she got a good reference but given the advice on this forum, resigning is no longer a considered option.

 

Cheers

 

Ron

[Dansdad]

I don't want to divert the thread into a discussion about what may or may not be construed as gross misconduct, I was just trying to point out that a case can be made that it was.

 

Particularly in this case the counter argument is that it was done in order to bring to light serious misconduct on the part of the Senior Nurse, and that justifies/mitigates the actions taken to gather the evidence.

 

Food for thought indeed and I thank you for this. Its now just after 2 am and I'm at work at 5 am so I'm really going to try and get some sleep.

Once again grateful thanks to all that have gone out of their way to help, it really has been appreciated.

 

Cheers

 

Ron

[bed32]

Food for thought indeed and I thank you for this. Its now just after 2 am and I'm at work at 5 am so I'm really going to try and get some sleep.

Once again grateful thanks to all that have gone out of their way to help, it really has been appreciated.

 

Cheers

 

Ron

For the moment your position should be that she did what was necessary to bring to light serious problems of bullying and harassment. Once she had come across the evidence accidentally it would have negligent of her not to follow up.

[Sidewinder]

I don't want to divert the thread into a discussion about what may or may not be construed as gross misconduct, I was just trying to point out that a case can be made that it was.

 

Sorry - perhaps I wasn't clear - I was not arguing and actually agree with what you say. Some things really get my goat - employers who aren't smart enough not to leave important matters of policy open to interpretation and 'managers' who have an absolute ignorance of legal responsibility being just two of them!

[bed32]

Sorry - perhaps I wasn't clear - I was not arguing and actually agree with what you say. Some things really get my goat - employers who aren't smart enough not to leave important matters of policy open to interpretation and 'managers' who have an absolute ignorance of legal responsibility being just two of them!

I actually have some sympathy for managers in small organisations. These days there is so much employment legislation and red tape that it must be very difficult to keep on top of it all without a full-time, professional, HR department that is out of the scope of small organisations.

 

I can sympathise with managers who try to act fairly and honourably but fall foul of letter of say the legally required disciplinary process. However in this case what the manager is doing is clearly morally wrong as well as legally wrong and I think he must be made to pay.

[Dansdad]

Hi,

Since my last email, my wife has seen the RCN rep. To say he was gobsmacked at the way things have been handled would be a gross understatement. He believes that my wife has a strong case against

the practice manager and is organising legal assistance through the union.

 

He commented that the practice manager seems to have done everything possible wrong and then asked if he was having an affair with the senior nurse !!

 

He did say it would be a long drawn out process but was confident of victory in the end.

 

Cheers

 

Ron