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My sister in law was dismissed by a local NHS Trust for

My sister in law...

My sister in law was dismissed by a local NHS Trust for gross professional misconduct last week. She is planning to appeal but needs to clarify whether the Trust's decision was appropriate.

Lawyer's Assistant: Is the employment agreement "at will," union, full time or part time?

It is full time. The circumstances are that when visiting a patient at home (she is a district nurse) she overheard some nasty comments about her professionalism. The patient concerned has a history of making regular complaints about nurses that visit her to provide clinical care, to the point where most of them are scared of visiting. My sister in law had already raised this with her immediate manager (the Matron) and requested support when visiting this patient. No action was taken. As a result of overhearing the comment, my sister in law challenged the patient (in a professional way) and as a result the patient put in a complaint. As there was on the patient and my sister in law present, there is no unbiased evidence as to what was said and the patient (according to my sister in law) is lying. The Trust have reviewed the circumstances and have dismissed her on the grounds of 'gross professional misconduct' . This seems not proportionate to the incident.

Lawyer's Assistant: Because employment law varies from place to place, can you tell me what state this is in?

Its in the UK - Yorkshire

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Answered in 41 minutes by:
11/20/2017
Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
Satisfied Customers: 50,938
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Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

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How long did she work there for?

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Customer reply replied 8 months ago
In the current position for 5 or more years, in the Trust (in other roles) for more than 15 years

Ok thanks leave it with me please I will reply later today thanks

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Many thanks for your patience. Her rights here will very much depend on what investigation the employer conducted and what the evidence that came out of it was. If this was to go to trobunal, it cannot substitute its own view for that of the employer, so they have to accept the employer's decision but decide if it was done fairly.

As far as the legal position is concerned, alleged misconduct is a common reason for dismissing an employee. It could be either due to a single serious act of misconduct or a series of less serious acts over a period of time.

In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:
• Conducts a reasonable investigation
• Follows a fair disciplinary procedure
• Has genuine belief the employee was guilty; and
• Shows that dismissal was a decision that a reasonable employer would have taken in the circumstances

In addition, the employer is expected to follow the ACAS Code of Practice on Disciplinary and Grievance procedures, which can be incorporated into their own disciplinary policy. Altogether, it means that a fair disciplinary procedure should be conducted as follows:

1. Investigation – the employer must conduct a reasonable investigation first. This could include interviewing the employee or other witnesses who may have relevant information. What is reasonable depends entirely on the circumstances and the nature and seriousness of the allegations. The more serious or complex these are, the more detailed the investigation needs to be.

2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee can be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations and any evidence to be used against them. They have the legal right to be accompanied at the hearing by a trade union representative or a colleague.

3. Decision - following the disciplinary hearing and once the employer has had a chance to consider the employee’s response, they can make a decision on the outcome. If the employer holds a genuine belief that the employee was guilty, then they can go ahead and formally sanction them.

4. Penalty – this has to be a sanction, which a reasonable employer would have taken in the circumstances. When deciding on the appropriate penalty, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. Unless the offence was one of gross misconduct, ACAS recommends that the employee is issued with a written warning for a first offence.

In summary, the requirements of proof as not as stringent as in criminal law and an employer is not expected to prove beyond reasonable doubt that the alleged misconduct had definitely occurred. Dismissal can be fair if the employer can show that it had met the above criteria, namely conducting a reasonable investigation, following a fair procedure and holding a genuine belief that the employee was guilty. Finally, it must show that dismissal was an outcome, which a reasonable employer would have taken in the circumstances. I would say that considering this person has a history of complaints and abusive behaviour towards staff and that there was no independent witness to what happened, the employer should have perhaps given her the benefit of the doubt and only issued a warning rather than going straight to dismissal. This is especially considering her length of service and, I assume, clean disciplinary record.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss her rights in the event the appeal fails. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Ben Jones
Ben Jones, UK Lawyer
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Thank you. If there is evidence that the employer has not followed a fair procedure as outlined earlier, an appeal can be submitted to the employer immediately after the disciplinary outcome. If the appeal fails, 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 termination.

Before a person can make a claim in the employment tribunal, they would be required to participate in mandatory early conciliation through the Advisory Conciliation and Arbitration Service (ACAS).

The purpose of this process is to allow ACAS to mediate between the claimant and respondent to agree on an out of court settlement in order to avoid the need for legal action in tribunal. The respondent does not have to engage in these discussions, or if they do and the talks are unsuccessful, the claimant will be issued with a certificate allowing them to make a claim.

However, if a settlement is reached, the claimant would agree not to proceed with the claim in return for the agreed financial settlement. Other terms can also be agreed as part of the settlement, such as an agreed reference.

To initiate the conciliation procedure ACAS can be contacted online by filling in the following form (https://ec.acas.org.uk/Submission/SingleClaimantPage), or by phone on 0300(###) ###-####

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