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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 45343
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I was wondering if you are able to help me? I work in a

Customer Question

Hello, I was wondering if you are able to help me? I work in a nursery and I went to move a child away as he was drawing on some documents. He leant forward as I went to move him away making a slapping noise. I have now been accused of slapping him. This happened in the morning and I was not called into the office until the afternoon by which time i had actually forgot what had happened as I didnt feel it was anything. I was told to write down what happened in my own words. I said I am sorry for slapping the boy it must have been harder than i relasied when I moved him away. but after getting home and thinking thro what had happened I knew I had not slapped him. As firstly it isnt in my nature, secondly there was not even a mark on the child and the child did not react when it happened. I would like to know where i stand with all of this. I want to apply for a childcare job closer to my home but unsure if I can do this while this investigation is going on.
Submitted: 6 months ago.
Category: UK Law
Expert:  Thomas Judge replied 6 months ago.

Have you now admitted to slapping the child? What is the policy on slapping children in the nursery?

Expert:  Ben Jones replied 6 months ago.

Hi there, the first thing to bear in mind is that being accused of something or being under investigation does not necessarily mean you are guilty of the allegations. The employer will have to satisfy themselves that you have likely done something wrong before they can proceed to a more formal procedure, such as formal disciplinary proceedings. Even then you will still have the chance to defend yourself and to try and argue that you are innocent of these allegations. How this is done will vary from case to case and whilst witnesses can be important, other factors will also come in handy such as the physical evidence (i.e. Lack of marks) or even taking the child’s own account (assuming they are capable of providing that, even if it is simple).

One issue is that you have issued an apology for slapping the child, implying that you have admitted to it. If you are adamant that you did not slap them then it would be best to retract that statement and clarify that you were apologising for what appears to have been a slap, rather than an actual slap.

In terms of what is required of an employer in these circumstances, misconduct is a common reason for taking disciplinary action against an employee. It could be due either to a single serious act of misconduct or a series of less serious acts over a period of time.

In order to justify that disciplinary action on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation;
• Follows a fair disciplinary procedure; and
• Shows they had reasonable grounds to believe the employee was guilty.

In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows:

1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague.

3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning.

In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken.

If there are any doubts about any of the above and there is belief or evidence that the employer has not satisfied these requirements, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the disciplinary results in dismissal then a claim for unfair dismissal can be made in the employment tribunal. There are two requirements to claim: the employee must have at least 2 years' continuous service with the employer and the claim must be made within 3 months of the date of dismissal.

Finally, just because you are under an internal investigation at work does not mean you cannot apply for other jobs elsewhere – you are still free to do so. You kay even leave your current job before the investigation or disciplinary has been completed.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you