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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
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I work as a senior care assistant in a nursing/residential

Customer Question

Hi I work as a senior care assistant in a nursing/residential home where I have been for the last 4 years since it opened .
I am under a disciplinary for counter signing a signiture for a nurse for a controlled drug disposel/destroy.she asked me to sign the book which I did but then there was no doop kits in the building to do it so the nurse put the drugs back in the cupboard and hence this was picked up in an audit some months later I've already had a meeting with the manager and put my points across saying there were no kits to destroy the drugs etc the nurse was also interveiwed but as I'm aware isn't going to disiplinary for her but is me
I'm worried I'm going to loose my Job in now on 2 week sick leave for stress and trying to find a new Job asap
Submitted: 2 years ago.
Category: UK Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What would you like to know about this situation exactly? Also do you agree you have breached policy?
Customer: replied 2 years ago.

hi yes I admitted I had breached policy but didn't know this at the time.i fully admitted being in the wrong and said it was a serious mistake on my part I didn't realise the seriousness of it at the Tim till now

does it count as gross mis conduct so I could loose my job ? I askd the manager if the nurse who id countersigned for was also having a disciplinary to which she coulnnt discuss I've later found out no she's not ??? I'm confused will I loose my job I've never been in trouble ever and I'm a loyal employee of the company who has seen 6 managers in less then 4 years

Expert:  Ben Jones replied 2 years ago.
Misconduct, such as the allegations you are facing, 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. So the issue is whether this is gross misconduct or not. The starting point is that you have falsified official paperwork and this could amount to gross misconduct. It is important to check what policies your employer has in place for this and if it says that it could amount to gross misconduct. But I think the employer would be looking at the fact that there was a breach of trust because you have falsified the documentation.
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.
The last issue is that no one can predict at this stage if it will result in dismissal so I cannot say that you will or will not lose your job – only time will tell. You will have to go through the disciplinary process, defend yourself and await the outcome, then you can decide on what to do next and whether to appeal or consider the unfair dismissal route if necessary.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.
Thanks for that
I feel really bad about what's happened but very angry knowing the nurse isn't being investigated where's the fairness in that ?
Given the fact I've never been in trouble in the 4years ive worked for this company I would consider it harsh to sack me for my first ever disciplinary to which I feel really bad about maybe a de- motion would be better ? Which I would certainly accept as I stated this at interview
So let's say I get the sack and the nurse doesn't could I appeal ?
Also if I do get the sack would I be able to claim any benefits ?
Expert:  Ben Jones replied 2 years ago.
The issue here is that you were the one who falsified the signature, not the other nurse. She may have asked you to sign it but you did not have to do so, you could have refused. It is the fact that you went ahead with it that is the misconduct allegation. But you can appeal in any event, it is your legal right, regardless of what has happened and you should do so if it gets to that.
In terms of benefits, sometimes they could be delayed by up to 26 weeks if you have been dismissed for gross misconduct but this is done on a case by case basis and it does not automatically mean that you won’t get any.
If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 2 years ago.
Now I understand it was me to fault
This was not explained to me now I understand for making it more clearer .
Will it actually be gross misconduct or misconduct as you state
Will it be the manager that makes the decision as I've never been through anything like this at all in my whole working life
Expert:  Ben Jones replied 2 years ago.
I will respond fully in the morning thanks
Expert:  Ben Jones replied 2 years ago.
Hello again, there is no list of offences that amount to gross misconduct and it would generally be for the employer to decide on that, depending on the nature of the offence, whether there are any policies in place that deal with that, how serious it is in the settings in which it occurred, etc.
As you falsified an official document then this could amount to dishonesty and that in itself can amount to gross misconduct so there is a potential there that gross misconduct could be pursued. It would be the person talking the disciplinary hearing who decides, I do not know if that is the manager you refer to but you would be advised who is to chair the disciplinary before you are asked to attend.
Hope this clarifies things a bit more for you. If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Expert:  Ben Jones replied 2 years ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you