Unfair Dismissal, Retalian for acting as companion (acas) and whistleblowing on manag

Sixu

DVardysShadow wrote: »

Anyone who wet shaves probably has something which could be classed as an open wound on their face.

The staff member in question does. I feel we're getting a bit too focused on the whole spitting incident. The point is; a staff member was assaulted with the chance of contracting something. While he was off sick, immediate management after fearing the company would be sued, tried to bribe a member of the public (with tax payers money) and attempted to get him to sign a disclaimer preventing him from future legal action.

SarEl

Sixu wrote: »

Automatic Unfair Dismissal, Retaliation for acting as a companion (ACAS) and whistleblowing on inappropriate if not illegal activity by management.

I desperately need some advice on this issue. As to help me decide what my next steps are.

I was a temp support assistant at a substance misuse project for the past 8 months, before I was fired on the spot on friday for what I believe to be retaliation for whistleblowing, acting as a companion (under ACAS) at a disciplinary hearing (and with the former point in mind) automatic unfair dismissal. This is not an automatic unfair dismissal. The thing you have confused it with is trades union activity. Had you been there as an offocial representative of a trades union it might (if the rest of your case stacked up) have amounted to automatic unfair dismissal if you could demonstarte that this was the reason for your dismissal.

I will start in chronological order in order for you good folks to reach some objective decision:

In mid september a work colleague of mine was assaulted on our premises and spat in the face. This man was intoxicated (either through drug or alcohol) when he came onto the premises and ended up spitting in this staff member's face. Now with the real possibility of having contracted some disease, such as HIV or Hepatitus, this staff member went to get himself tested, and went off sick. Was he told to go and get himself tested by management? Was there an actual risk - because in neither the case of HIV or Hepetitis is the virus that easily transmitted, and whilst management might have deemed this appropriate (which I doubt) there is no way a test at that time would have actually shown any such transmission - it isn't detectable immediately, and anyone working in this field should know that.

While he was sick, a disciplinary process was begun.In part because the relationship between my work colleague and line manager isn't good, but I can't substantiate that. So what you mean is that there was no evidence of this? Within the first two weeks were were told the staff member was not allowed on the premises and that he was suspended (we were told before he ever was). And there is nothing wrong with that.

I wasn't particularily happy about his treatment at this point, but it wasn't any of my business.

It was at this point that things started to get very, very alarming. Before the staff member off sick was even suspended, our immediate management in their infinite wisdom somehow decided it was a good idea to pay of this member of the public with a [sum of money] gift voucher if he signed a disclaimer preventing him from suing the company later on. This would indicate that there was something more to the story of the incident than we have heard. People who are drunk or on drugs (allegedly) may react in unexpected ways - but he would have been unable to sue unless there was something to the incident that suggested that he had been improperly treated during the incident.

It was at this point I lost any confidence and faith in my immediate management. While a staff member was waiting to find out if he had contracted a disease, they were trying to prevent any compensation claim. Which tends to suggest that there may be grounds for a compensation claim. Effectively this constituted bribery, not to mention this guy himself is a vulnerable adult. No it did not constitute bribery. Regardless of his condition, unless he is a protected aduly and unable to conduct his own affairs he entered into a legally binding agreement with another party. That is not bribery. This document was then left on a desk in public view, and as I had grave concerns about the innapropriateness of this document and its implications, Why? It had nothing to do with you. Granted it should not have been left in a public place, but that is not a crime. I took a photo of it (to timestamp it) and photocopied it, to alert senior management. Which you did immediately? It appears that you did not - you say that you waited until the disciplinary hearing. So you were not in fact all that concerned about it at all.

At this time, the work colleague off sick had been informed that an investigation of the incident was underway, and he asked me if i could be his companion under ACAS. I agreed.

Now the nature of the company i work for, is meant to help people with substance misuse issues progress into recovery and independent living, I say this because of a statement I took from a witness of the incident, a day or two before the disciplinary hearing.

During the incident in mid september, a client in our building had witnessed some of the incident. The investigation officer took his statement at some point in late september early october. But he had complained to frontline staff, myself included that he had felt pressured and uncomfortable making a statement (also a vulnerable adult). I did not know whether this had been reported or not, but in the event it hadn't I felt this view should be expressed. Fair enough. He was entitled to say this and you were entitled to report that he said it.

Because of the disclaimer, certainly amounting to bribery, I could not in good conscious approach my immediate management about the feelings and thoughts of this client. I felt my only recourse of action, since both documents revolved around the incident, was to bring these to the attention of senior management at the hearing.

This I did.

Four days after, I was taken into the back office, with the manager who was at the disciplinary panel (who is responsible for the other project manager) and another manager who authorised the payment to the member of the public. (He had obviously disclosed that I knew the disclaimer/bribery had occured/attempted)

I was told that the reason I was being immediately dismissed was because I didn't follow the correct procedure in reporting the client's feelings and thoughts after he gave a statement. And the fact is that you didn't. You had a responsibility to report this at the time that you became aware of it - especially if you were so concerned about his position as a vulnerable adult. That I had a conflict of interest in supporting my work colleague at the disciplinary. There appears to be an element of truth in this. You were in possesion of information which you say caused you serious concern at the time, but which you did not report immediately and which you withheld until the hearing. That information may have resulted in the investigation taking a different turning and no disciplinary having been held. It may not have done, but it equally may have changed the course of events. At least some of that information you kinew before you were ever asked to accompany your colleague. This does raise the question as to why you withheld information, failed to act through appropriate channels, and why you began this course of action before you had any role at all in the disciplinary action. It certainly does suggest a motivation to "get your managers" rather than to see the right thing done. That because I was a temporary employee, I wasn't entitled to an investigation and that I'd be facing a disciplinary. Nobody is entitled to an investigation. One may be held if necessary - but if the employer feels it is not necessary then one is not required.

I stated that, regardless of whom reported it, it could be verified by asking other frontline staff to confirm this. He chose not to reply to that.

The disclaimer was the first thing the manager mentioned, quizzing me on where I got it from. He insinuated I was a thief.

He also stated when my contract ended. Now, this needs to be explained a little. I was on a 6 month contract from March-September. I then worked for two weeks without signing a contract, which i repeatedly asked for from my manager (as I don't like not knowing my rights). When it arrived it had the wrong date on it, ending at the end of november and not december.

I questioned this with my manager, and he assured me it was a mistake and that my job would be secure till then.

I feel it prudent to state though, I never signed that contract, I didn't send the contract back, in fact I have both copies here. (I don't know if this will have a negative or positive bearing on any legal proceedings) It won't make any difference at all. It said November, you have no proof otherwise, and you have less than 12 months employment.

Regardless, this mistake was used to their advantage, as my manager stated that my contract was up the end of november. That i'd be paid until the end of it, but that i had to hand over my keys now.

If however this was true, why was i booked on a company excursion on the 9th December and why have I got annual leave booked for five days in late December? Still makes no difference - less than 12 months employment.

Also, the hours I was doing was covering that of a worker who had been sick for several months and recently handed in their notice. It was this worker's job I was encouraged to apply for which was only advertised from the 7th November. The closing date is the 22nd November. So? That doesn't change the facts.

I need to point out that their are no vacancies where i was working. So in the even that my contract did end on the 30th November, then that would only give them 9 days to go through all the applications, whittle those down, interview all candidates and receive a clean CRB from the applicant. I don't think that's particularily feasable and believe that this would perhaps go in my favour. Not in the slightest. The tribunal is not in the least bit concerned about how much employment you might have had had you not been dismissed - only how much you have already had.

There are a few other things that I can't currently go into, but I have been in touch with ACAS, who have advised me to appeal before thinking about any possible employment tribunal business. For once they are correct, but since they are not legal advisors and cannot give legal advice then anything else they say is suspect (and probably wrong)

I'm totally disgusted though. I have only reported the truth.

Ah - but as Pilate said "What is truth?" This is your version of it. But you do not have a case of automatic unfair dismissal. You did not make a protected disclosure (this is very rigidly and clearly defined in law - what you did does not meet the criteria in any shape or form). You did act inappropriately in relation to withholding information and using that information as part of a disciplinary hearing whilst simultanenously claiming that the information was of such a serious nature that it demanded an immediate response from management and put vulnerable people at risk (which should have been reported in an instant, not at your convenience). There was a conflict of interest, and one in which you did your collegaue few favours by the way that you approached it. And you have less than 12 months employment and therefore no right to claim unfair dismissal except for grounds procribed in law, which you do not have.

Sorry but you handled this entire matter in a way which calls into question your professional judgement, and walked straight into the termination of your contract.

ILW

Why was the "victim" off sick for weeks?
There would have been no symptoms in that time.

KiKi

DVardysShadow wrote: »

Anyone who wet shaves probably has something which could be classed as an open wound on their face.

Highly unlikely that the wound would have litres of spit in it, though.

Sixu wrote: »

The staff member in question does. I feel we're getting a bit too focused on the whole spitting incident. The point is; a staff member was assaulted with the chance of contracting something. While he was off sick, immediate management after fearing the company would be sued, tried to bribe a member of the public (with tax payers money) and attempted to get him to sign a disclaimer preventing him from future legal action.

I'm not focusing on the spitting incident - I spent much more time offering an opinion on your employment situation (you chose not to respond to that part).

I just think it's surprising that someone who works around drugs and substance misuse would think that spitting in someone's face would constitute a 'real possibility' of catching HIV. It would be almost impossible.

Anyway, SarEl's clarified some stuff for you so hopefully that's what you need.

KiKi

SarEl

Sixu wrote: »

Sorry, during the incident after the staff member was spat in the face the staff member pushed him back and the guy fell. He then came to the building a day or two later complaining to management that he'd hurt his arm and that he'll sue them.

So in fact there were grounds to sue? Isn't the first rule of professional conduct with vulnerable adults that you do not offer violence and you do not react physically unless it is to restrain them in order to prevent them from doing physical harm to themselves and/or others? Spitting at someone is certainly unpleasant, but it is not putting anyone in immediate physical danger. Your colleague should therefore not have pushed him - whether it resulted in a fall or not.

SueC_2

So, we have a 'substance abuse project' with employees who:

1. Do not understand the 'real' risks of contracting HIV or hepatitis.
2. Are not vaccinated against hepatitis.
3. Do not follow guidelines re. physical interaction with clients.

Lots to worry about there. But sadly none of it the object of the original post.

dandelionclock30

"Sorry, during the incident after the staff member was spat in the face the staff member pushed him back and the guy fell. He then came to the building a day or two later complaining to management that he'd hurt his arm and that he'll sue them."

So to clarrify the staff member pushed the client back and they fell? This staff members main problem is that he could be listed on the POVA list as being a risk to vulnerable adults. This will come up everytime he has a CRB and he will not be able to work hardly anywhere! This is really serious as it will limit his options as CRB is widely misused nowadays. He needs to get legal advice as once you get listed on this you can only appeal to get taken off every 10 years or so.

Sixu

SarEl wrote: »

So in fact there were grounds to sue? Isn't the first rule of professional conduct with vulnerable adults that you do not offer violence and you do not react physically unless it is to restrain them in order to prevent them from doing physical harm to themselves and/or others? Spitting at someone is certainly unpleasant, but it is not putting anyone in immediate physical danger. Your colleague should therefore not have pushed him - whether it resulted in a fall or not.

and I agree with that, in fact there were alot of things I would have done differently if that had happened to me, and I've told him this openly. Though this isn't about him or his case, and as it's unfair that he can't explain his position with you guys, I'd politely ask we just keep the discussion about my predicament and advice around that.

I am genuinely taking on board all views here, I came here for advice and even if it's not the advice i'd like to hear, it's good advice in any event.

I also understand that in both cases the witholding of information could/probably be seen negatively. I just did not know whom to turn to for advice. The entire junior team of management either drafted or authorised this payment in order not to sue the company and as such I could not get advice from those who could have informed me in who to "whistleblow" to, or how to do it. I do not even know if we have a whistleblowing policy or procedure. All I knew was that a disciplinary hearing was coming up quickly that had senior management present, and because the disclaimer was directly related to the incident I would be justified in disclosing it there. If that was wrong, I am sincerely sorry. My intention was only to raise the alarm to what I saw was inappropriate behaviour.

dandelionclock30

Regarding how to whistleblow- you can phone up Adult Social Care or the Safeguarding Board.They can take the details.

Emmzi

y'know, it costs a lot of money to defend a case where your member of staff has pushed someone.

A few quid to make it go away is a much better use of taxpayers money than hours of legal advice.

I believe your interpretation of their actions is not pragamatic, and not business focussed.

And I'd stop calling it a bribe.