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evalinda

Do I have a constructive dismissal case?

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I have been employed since 07/07/2012 (5 months).

I have 10-years work experience as a dementia carer; nurse's and nutritionist's qualifications; spotless track record.

I work as a live-in carer on 2 weeks on/2 weeks off rota basis:

2 x Wed -Wed; paid breaks 7h on Wed (11am-6pm) and 4h on Sat (11am-3pm). Sleep in nights on call.

Client (and a dog) has advanced dementia and is very mobile.

I think this is more like a shift work, where the shift pattern is:

4 live in shifts (315 hrs) are worked in 14 days:

Wednesday 6 pm – Saturday 11 am; 65 h; 4 h break

Saturday 3 pm - Wednesday 11 am; 92 h; 6 h break

Wednesday 6 pm – Saturday 11 am; 65 h; 4 h break

Saturday 3 pm - Wednesday 12 am; 93 h; handover

315 h worked in 14 days.

 

I believe my employer has committed a serious breach of my EC by:

1. Failing to pay NMW

Required to work 315 h in 14 days, being paid £ 80 per day = £ 3.55 p/h.

2. Failing to provide minimum daily and weekly rest periods

The breaks I get at the placement are: 7 h break (11 am – 6 pm) on Wednesdays; 4 h break (11 am – 3 pm) on Saturdays.

3. Serious breach of the 'duty of mutual trust and confidence'

a) by accusing me of gross misconduct (on 29/11), Unprofessional conduct: raising concerns about the Company and carer colleagues with the client representative (client's son). I replied to Client Son's personal text message to me about his Mum, making a comment about the Company and relief carers. I felt this was my duty of care to let the son know how his mother is being treated by relief carers the company is providing.

They are accusing me of Crossing professional boundaries (Company's Policy 93)

and Failure to follow their policies and procedures.When I asked what policies and procedures do they mean, manager said Policy No 93. Said I haven't seen it, he said it was available on the website and was included in my employment contract (not true). Was given the copy of Policy No 93: Professional Boundaries on 06/12.

b) by imposing a suspension with pay (on 29/11), Suspension Grievance on 30/11.

c) giving a warning of possible summary dismissal (on 06/12) before the disciplinary hearing ( 13/12) (adding to unnecessary stress)

Suspension was a “final straw”.

Other perhaps relevant breaches and actions:

1. Failing to sign off my Common Induction Standards (Care Academy), which I have completed/passed in 09/12 and it is pending sign off since I passed my probational period (07/10/12).

2. Failing to acknowledge my name. I changed my surname in October and notified the employer – they are still referring to me by my old name (incl all the disciplinary documents).

3. Not treated equally and fairly (was lied to) when applied for Senior Carer's position within the company twice (21/09 and 14/11).

4. Elements of bullying from senior manager (who is in charge of senior carers) - destructive irrelevant criticism and irrelevant remarks undermining my abilities.

 

I'm in the situation where I have suffered a psychiatric injury, I am not able to work or defend myself at the hearings in English, because my mental health has suffered: I have panic attacks and constant anxiety and tearfulness, difficulties to concentrate.

I have no money for a lawyer, I have no money to pay my rent, I have no money to buy food. I have no money to go home for Christmas ..

 

Could you please advice what should I do.

 

Do I resign asap to be able to claim constructive dismissal?

The disciplinary hearing is scheduled for 13/12 and I'm pretty sure they will dismiss me as they have warned be doing so in the hearing letter.

I have documented everything and kept placement diary.

Please help. Thank you.

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Hello

 

Just to be clear, you can't claim constructive dismissal on standard grounds until you have two years service.

 

Have you raised a grievance or complaint in writing over these issues?

 

It does sound like a potential breach of NMW and the Working Time Regs - when "on call", are you at the employers premises, or at home? One point is that domestic servants who live in could be exempt... But if you are at a service users home, that could be grounds for complaint.

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Thank you Becky for taking time to reply - I hoped you will.

 

1. Yes I work at Service User/Client's home.

Employer calls it live in work. I came across advert on Gumtree from a market leader care provider, who offers a correct pay for "like" work:

"We are looking for care assistants to provide care to a man with spinal injury and schizophrenia in Haringey. Mental health experience required.Full training will be provided. Shifts are - Days 8am-2pm and 2pm-8pm; Sleep in nights 8pm-8am. Pay £8-£8.50 per hour, sleep in night £62"

I raised a grievance twice:

1) 19/11 Open letter/reply to senior manager's letter and actions during work interviews for senior carer's position. This open letter actually was not meant as a grievance in the first place, but they treated it as such and invited me to a hearing on 06/12.

In this grievance I gave all the reasons why I felt discriminated, treated less favorably:

a) being paid less for "like work",

b) not paid salary for introduction training,

c) not given work till 19/07 (was employed on 07/07) and not being paid salary till 24/08

d) also mentioned the pay and rest time issue

e) elements of bullying and unfair treatment on behalf of a senior manager in the process of me applying for a senior carer's position

d) I also sort of whistle blew about an unprofessional performance on behalf of relief carers

Looking at it now I think this is a victimization as a answer to my 19/11 grievance.

 

2) 29/11 I raised a grievance about unreasonable suspension and the fact that what I did and said does not qualify as a gross misconduct by no means according to their policies and procedures published in my contract and in the company's disciplinary policy.

3) 06/12 was given a warning of possible summary dismissal on 13/12 disciplinary hearing.

Unreasonable suspension and threatening with summary dismissal was a "final straw".

I'm pretty sure they will dismiss me and then I can't bring the unfair constructive dismissal case. I need an advice on this.

The disciplinary hearing is tomorrow at 3 pm and I have no desire to see them what so ever.

 

All the thoughts and suggestions are really appreciated.

 

Thank you

EL

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