Pregnancy constructive dismissal

[Odog1980]

Hello,

 

Its a bit long winded but please stay with this. I would be greatful for any help.

 

In February my girlfriend told work that she is pregnant. She works as a senior care worker in a nursing home. She was expecting a risk assessment to be carried out but there was no mention of it. After continually asking, her manager said that one had been carried out and she told my girlfriend that she was not able to work up stairs where the more difficult residents are. My girlfriend did not see or sign this "risk assessment" and she was not given information about the works maternity policy and pregnancy notification form. This is set out in the companies own policy and procedure. My girlfriend only received this when she raised a grievance about this.

 

Now the fun begins. On the 11th of March my girlfiend was off work sick when she received a phone call from her manager asking if she remembered losing any confidential information she answered the questions unaware that minutes were being taken or that someone was present with the manager while the phone call was made. The minutes of this conversation were then put forward as evidence.

 

On the 15th of March, my girlfriend received 2 letters from work. One was for a gross misconduct meeting regarding the loss of information and the other was an investigatory meeting for a medication error (which the company stated as being poor performance) for which my girlfriend is not responsable. She has been suspended due to the investigatory meeting since the 30th of March.

 

My girlfriend raised a grievance because she never saw a risk assessment and other reasons for which she feels unfairly treated at work. During the grievance meeting, the person who was chairing the meeting showed my girlfriend the risk assessment that was carried out which could only be described as a joke. It was not on the correct form (it was filled out on a residents care plan risk assessment). The person who was chairing the meeting screwed up the risk assessment and then carried out a proper risk assessment. At this time my girlfriend was 25 weeks pregnant. The person chairing also went through the other points that my girlfriend raised and agreed that there was a case for grievance and the outcome was that my girlfriend and her manager should have mediation meetings.

 

On the 6th of May, my girlfriend went into the gross misconduct meeting with a union rep. She explained that she did not realise that she had the confidential information which had been lost. When they challenged her over her having this information, she then told them that all senior carers were given this information and that they were allowed to complete care plans in their own time at home. The union rep blew them out of the water on all points they raised during this meeting. (She is still waiting for the outcome of this meeting)

 

Today my girlfriend received a letter from work asking her to go to a meeting about the medication issue this has now turned into a gross misconduct meeting. The letter states that she could be dismissed from work and also put on the POVA list which would stop her working in care in the future. As mentioned earlier she is not responsible for this issue. The medication was ordered not collected. She had no way of knowing this due to the fact that the information was recorded in a diary which is held upstairs where my girlfriend was told not to work.

 

To me this seems like her work cannot uphold the earlier case of gross misconduct and they are trying to get my girlfriend sacked on another issue for which they previously stated as been poor performance.

 

My girlfriend only has 1 week and 4 days from today until her maternity leave begins.

 

Do you think that we would have a sucessful case for a tribunal? Would this come under constructive dismissal and would my girlfriend also have a case for sexual discrimination.

[sparkles2010]

Care plans shoudnt be removed from the care home, they are classed as a legal document, who ever told your girlfriend that she could do this is very much mistaken.

 

I have worked as a senior carer for 10yrs, and the only time a care plan was removed from a clients home was when the service ceased, or if the office staff requested it to be removed, but it would be replaced with a new one, containing all the clients details.

 

What was the medication error they claim your girlfriend made? Has she had the correct medication handling training?

[Odog1980]

Hi Thanks for looking, The care plans were empty and taken home to be completed because staff dont have time to do them at work.

 

As for the medicaton, after the investigatory meeting on the same date my girlfriend attended an advanced medication training. But before hand she only had 2 hours training with boots. The company is blaming my girlfrien for some medication not being ordered when, they have supplied a witness statement in which another senior has stated that she ordered the medication and another senior received the prescription form but nobody knows what happened after that

[sparkles2010]

So the care plans were being made up at home? As in the residents information were being put into the care plans at your girlfriends house?

 

They can still class that as a breach of confidentiality, as the care plans contain personal and confidential information about the resident, they could even claim you may have looked at them.

 

Looks as though someone has misplaced a script and is trying to pass the buck, by saying your girl friend didnt order the items required. Do you know if the script actually went to the chemist? Has this been checked by your girlfriend? Maybe the chemist didnt deliver it with the others , as it wasnt ready or had to be ordered in.

 

I would be inclined to contact the chemist, or the dr that did the script saying it has gone missing.

 

Also who carried out the risk assessment? Where i used to work it could only be done by management , who would arrange to watch the carer at work.

 

Getting someone put on the POVA list is a hard thing to do, one company i worked at tried to do it with a carer and failed, so i wouldnt worry to much about that.

[Odog1980]

your correct, the care plans were filled at home. but it was not care plans that were los (I never saw any care plans. My mother is a carer too so I know that they are confidential). The information was residents next of kin and doctor information. This was given to all seniors as the manager at the time said it would be useful information to have.

 

My girlfriend was never informed about the medication, this information was held on another floor where she had been told not to work due to being pregnant. Another senior has stated that she put in the diary that she received the presciption but left it for the late shift to deal with. I agree they are passing the buck but because they have been unsuccessful with one gross misconduct claim. they are trying another route to sack my GF.

 

Her manager was the person who first carried out a risk assessment, this was completed on a care plan risk assessment and not the correct form for a pregnancy risk assessment. Another manager from a different home chaired my GFs grievance meeting and filled out the correct pregnancy risk assessment form. This is was done around 25 weeks into the pregnancy which is quite worrying because if a proper risk assessment had been carrier out, they would have known that my GF is classed as high risk.

Edited May 9, 2011 by Odog1980
added info

[sparkles2010]

Ok, my bet is someone on night shift has misplaced the script.

 

Does the chemist collect and deliver the scripts, or is it down to a member of staff to sort out?

 

Could it be someone was supposed to take it to the chemist but forgot and its hiding under the seat in car?

[Odog1980]

It could be any of the above. My girlfirend received a call from boots asking how much medication was left and boots then confirmed that the medication will be delivered in the next few days.

 

One senior has stated that the medication was ordered. We have a witness statment which outlines this.

 

The prescription is faxed and the chemist then deliveres the meds

[sparkles2010]

I would chase boots on this as well, are there copies of fax's sent over to boots that could be checked?

 

It's not uncommon for chemists to miss things, and have them ready for delivery.

[Odog1980]

good idea thanks...my girlfriend will ask work to check as she cannot call boots due to her being suspended

[sparkles2010]

Ok no worries, fingers crossed for you,

[Matt63]

IMHO, your girlfriend has not yet got a case for constructive dismissal. However it is getting close and there are a number of intertwined issues. Here's what your girlfriend should do:

i) Write everything down as a letter, state that she is feeling victimised for issues which are really nothing to do with her and raise a grievance that the company has not treated her with due consideration during her pregnancy.

ii) Raise another grievance that her previous grievances have not been investigated properly and nor followed through.

iii) Go on well deserved maternity leave (get a doctor's note to go "sick" if the stress gets too much before then)

 

No company in its right mind would sack someone for gross misconduct so near to maternity leave with a number of grievances outstanding. Gross misconduct is a very serious matter, it has to be so major and so obviously major that it doesn't need to be written down. Taking work home would not normally be classed as gross misconduct unless specific reference was made to it in your staff handbook or on the staff noticeboard. Likewise losing a prescription is hardly gross misconduct unless specificately stated as such, and it still has to be proved by the company beyond all reasonable doubt.

 

Hopefully by the end of your girlfriend's maternity leave things will have calmed down and she will then be able to resume her career.

[Odog1980]

Thanks Matt, my girlfriend has documented everything that has gone on so far. As for the grievance, im not sure if one of the outcomes will come around anytime soon because the manager who my GF has to have the mediation meetings with looks like she will be under investigation for bullying another member of staff. I have passed your message on to my GF thanks again for your help.

[Odog1980]

Thanks again sparkels and Matt

 

Ok does anyone have anymore ideas on this? I can also safely say they are making my girlfriend a scapegoat. They have been trying to reduce the number of senior carers for some time now. One person who also works in the home went into work drunk. A complaint was made and she was suspended but allowed back to work after a week. Other members of staff have been diciplined because of this drunk girls actions. One person was even demoted because she never sent this person home. There are serious problems within this work place. My girlfriend has had 2 counts of gross misconduct brought about now all during her pregnancy. The stress is not good for her and our unborn child.

 

Also as for the medication error which they are trying to blame on my GF, another senior at another time admitted to the manager that she had forgotten to hand out some meds to which the manager told her to pop the drugs out of the blisters and put them in the bin and to sign the MAR sheet to show that the drugs had been administered. This may be difficult to prove but, I think my GF said that there were witnesses.

 

Can we call constructive dismissal on the grounds that they have had more serious issues with other members of staff that have not been dealt with?

[Matt63]

No you can't yet. Constructive dismissal is very very hard to prove and very difficult to win at the tribunal. How other people are treated is not really relevant except in relation to any disciplinary action your g/f faces. i.e. a valid defence to a charge of gross misconduct is that everybody else does that action and have not been disciplined.

 

In the end it all depends on the outcome you are trying to achieve. If your g/f wants happy employment on her return from pregnancy, submit a grievance and then try to put it behind her. She only has another week and a half to go until her maternity leave starts.

 

However, if the employer decides to sack your g/f now based on what you have described, then it is almost certain they will not have followed the correct procedures and therefore any dismissal will automatically be unfair, and that would be something your g/f would win at tribunal.

[Odog1980]

Hi Matt,

 

Hi Matt,

 

The main focus of the first gross misconduct meeting was not that my girlfriend lost the confidential information, but she was in the wrong to have it in the first place. She told the person chairing the meeting that other senior carers had also been given this information by a manager because "it was useful to have".

No other person has been diciplined for having this information even though all the other senior carers have admitted that they too have the same information to help them do work in their own time.

 

As for the medication error, it is only my girlfriend who has been suspended from work. Other senior carers have also had the meeting to investigate what has happened but, nobody else has been suspended. She is the only person there who is pregnant and she is being treated unfairly. She will raise another grievance in due time. We are waiting to see what the outcome of this meeting will be. As for returning t work, my girlfriend does want to return to work but at the moment she feels like she is being bullied and that her relationship with her manager has completly broken down

[Matt63]

In some ways the details don't matter. Neither "offence" can be construed as "gross misconduct", therefore your g/f's job is safe given normal circumstances. Likewise two "incidents" do not mean someone is bad at their job, people make mistakes in their jobs all the time, particularly when under stress of pregnancy. Employers have to take your g/f's pregnancy into account when assessing her quality of work. Finally, the company has to handle things in a fair and reasonable manner and if your g/f denies making the mistakes in the first place then they have to have very strong evidence to take it further. In summary, don't worry at the moment, raise the grievance and wait for the company to respond.

[sparkles2010]

I think your girlfriend needs to speak to CQC about what has happened regarding another carer disposing of medication down the sink.

 

CQC do operate a whistle blowing policy, what they did by failing to give meds is actually abuse, and could also be classed as neglect.

 

I dont think your gf has much to worry about, they cant dismiss her because she is pregnant, if they do you have a good case against the care home.

[Odog1980]

Hi Sparkles,

 

I agree with you on contacting CQC but I will advise my girlfriend to do it after her meeting which looks like it will be going ahead Friday. She has been intouch with her union who are not happy with the way work is treating her. The union are at this moment getting legal advice on the situation. My girlfriend has also contacted ACAS and told them the entire situation. ACAS said that she could be on for a case of sexual discriminaton and they are going the right way about unlawfully dismissing her due to pregnancy.

[Odog1980]

Update...

 

My girlfriend has now been sacked on gross misconduct for taking confidential information. The reasons her employer has give are:

 

Breached trust and confidenece of the company and service users in knowingly taking confidential information out of the building. You submitted a defence of mitigation and your evidence was in the form of a statement implying custom and practice by senior care staff of removing confidential information from the home. Our investigation into this statement has shown that it is not custom and practice for staff to remove confidential information from the home. Your mitigation has also been found to be disingenious as you attempted to coerce a fellow member of staff to submit a statement to support you in your defence.

 

I would like to point out that staff were given permissin to remove careplans. All seniors were given the confidential information as it was deemed useful to have. They are trying to imply that my girlfriend forced another member of staff to write a statement, this is not true she asked other seniors who she worked with if they could provide a statement.

 

We are writing an appeal on the grounds that the decision was harsh.

 

It is now clear that they have made an example of my girlfriend. She is the only person to have been pulled up over having this information and she is the only person to have been disciplined, and she is also the only person who is pregnant and due to start maternity leave in just over a weeks time. I can safely say that they are using this as a way to dismiss a pregnant person.

[Matt63]

I am so sorry to hear this. I am very very surprised, but I don't know the industry.

 

You now have to be very careful. The wrong move now could be very costly.

 

The first thing you have to check is whether there was anything in the staff handbook about taking work home as being classified as gross misconduct.

The second thing you have to check is whether they followed their own disciplinary procedures in this matter, i.e. were all the necessary letters sent and the necessary meetings held.

The third thing you have to check is whether your g/f has been given the right to appeal and to whom she need apply, and whether this person has been previously involved in the case.

 

Finally, for those who don't know the industry, like me, why do they consider taking work home to be so bad? What exactly is confidential and what exactly is the issue? Why are they so worried about it?

[Odog1980]

If the company handbook guides staff not to have personal information about residents but, staff had been given this information and permission to take work home to complete, where do we stand? have the managers broken the rules of the handbook. Would the dismissal be unfair due to staff following orders of management? I will be away from the computer for a bit so I will go into more detail when I can.

[Matt63]

In this case, it all depends what is written in the staff handbook and the contract of employment. The contract of employment will have a section on what is classified as gross misconduct. Any tribunal would take the view that it was reasonable that your g/f should have read her contract. The only defence to that might be a) not being given a contract, or b) that is was common practice to do the contrary and/or c) your g/f had been doing this with full knowledge of senior staff without challenge for a long period of time, and it was only when she became pregnant that she was picked up on this. There is a difference between "turning a blind eye" and "actively encouraging a practice". Please let us have more details....

[Odog1980]

Hi,

 

The contract of employment states:

 

any information aquired by you about the company, its services, its clients and business generally and which you are advised by the company to be confidential i.e not already existing in public domain, must be held as such and may not be divulged to any third party without express written authorisation. In the course of your duties you may have access to client or staff member records or other confidential information. Unauthorised disclosure or removal of such information will lead to disciplinary action which may include dismissal.

 

My girlfriend was give permission in a PDR meeting to complete care plans at home unpaid. Other senior members had also been given permission to take care plans home to complete. The confidential information (residents names, DOB, next of kin and doctors contact details) were give to my girlfriend by the deputy manager at the time who was also the acting home manager. People have been taking careplans home to complete for the past 3 years (given permission by different managers)

 

Just a line of thought, my girlfriend did not request to have the information that she was given, this was handed to her. Would the manager who gave the staff confidential information need written permission for her superiors to hand this information to staff?

Edited May 12, 2011 by Odog1980
question

[RachelMD]

Hello,

 

Its a bit long winded but please stay with this. I would be greatful for any help.

 

In February my girlfriend told work that she is pregnant. She works as a senior care worker in a nursing home. She was expecting a risk assessment to be carried out but there was no mention of it. After continually asking, her manager said that one had been carried out and she told my girlfriend that she was not able to work up stairs where the more difficult residents are. My girlfriend did not see or sign this "risk assessment" and she was not given information about the works maternity policy and pregnancy notification form. This is set out in the companies own policy and procedure. My girlfriend only received this when she raised a grievance about this.

 

Now the fun begins. On the 11th of March my girlfiend was off work sick when she received a phone call from her manager asking if she remembered losing any confidential information she answered the questions unaware that minutes were being taken or that someone was present with the manager while the phone call was made. The minutes of this conversation were then put forward as evidence.

 

On the 15th of March, my girlfriend received 2 letters from work. One was for a gross misconduct meeting regarding the loss of information and the other was an investigatory meeting for a medication error (which the company stated as being poor performance) for which my girlfriend is not responsable. She has been suspended due to the investigatory meeting since the 30th of March.

 

My girlfriend raised a grievance because she never saw a risk assessment and other reasons for which she feels unfairly treated at work. During the grievance meeting, the person who was chairing the meeting showed my girlfriend the risk assessment that was carried out which could only be described as a joke. It was not on the correct form (it was filled out on a residents care plan risk assessment). The person who was chairing the meeting screwed up the risk assessment and then carried out a proper risk assessment. At this time my girlfriend was 25 weeks pregnant. The person chairing also went through the other points that my girlfriend raised and agreed that there was a case for grievance and the outcome was that my girlfriend and her manager should have mediation meetings.

 

On the 6th of May, my girlfriend went into the gross misconduct meeting with a union rep. She explained that she did not realise that she had the confidential information which had been lost. When they challenged her over her having this information, she then told them that all senior carers were given this information and that they were allowed to complete care plans in their own time at home. The union rep blew them out of the water on all points they raised during this meeting. (She is still waiting for the outcome of this meeting)

 

Today my girlfriend received a letter from work asking her to go to a meeting about the medication issue this has now turned into a gross misconduct meeting. The letter states that she could be dismissed from work and also put on the POVA list which would stop her working in care in the future. As mentioned earlier she is not responsible for this issue. The medication was ordered not collected. She had no way of knowing this due to the fact that the information was recorded in a diary which is held upstairs where my girlfriend was told not to work.

 

To me this seems like her work cannot uphold the earlier case of gross misconduct and they are trying to get my girlfriend sacked on another issue for which they previously stated as been poor performance.

 

My girlfriend only has 1 week and 4 days from today until her maternity leave begins.

 

Do you think that we would have a sucessful case for a tribunal? Would this come under constructive dismissal and would my girlfriend also have a case for sexual discrimination.

Hi Odog, I've just read through your post.

Very sorry to hear that your girlfriend has been dismissed, particularly at a time that should be filled with happiness and expectation.

Can I just clarify something from #1?

You say she received letters on 15/03/11, and was suspended on 30/03/11. Did she continue to work between these dates?

[RachelMD]

Hi,

 

The contract of employment states:

 

any information aquired by you about the company, its services, its clients and business generally and which you are advised by the company to be confidential i.e not already existing in public domain, must be held as such and may not be divulged to any third party without express written authorisation. In the course of your duties you may have access to client or staff member records or other confidential information. Unauthorised disclosure or removal of such information will lead to disciplinary action which may include dismissal.

 

My girlfriend was give permission in a PDR meeting to complete care plans at home unpaid. Other senior members had also been given permission to take care plans home to complete. The confidential information (residents names, DOB, next of kin and doctors contact details) were give to my girlfriend by the deputy manager at the time who was also the acting home manager. People have been taking careplans home to complete for the past 3 years (given permission by different managers)

 

Just a line of thought, my girlfriend did not request to have the information that she was given, this was handed to her. Would the manager who gave the staff confidential information need written permission for her superiors to hand this information to staff?

The key word here is Unauthorised.Clearly the removal of information was sanctioned by her line manager(s).

I'd suggest a SAR, to try to get your hands on PDR notes, etc.

Does your girlfriend have good connections with her former colleagues? Any chance of witness statements?

Sadly, former colleagues can go strangely quiet when one is dismissed.