Legally is an employer allowed to.....

sho_me_da_money

marybelle01 wrote: »

My insurers say otherwise and I'm going to trust them over someone making a claim that illegally driving my car on the road is actually ok; and it is still illegal. And I didn't say that not having an MOT means your car is roadworthy - I said it meant you didn't know it is.

I got paid out. The great and almighty Dacouch started it by pointing me in the right direction and I finished it by arguing a term in law known as Contra Preferentum. Must you need a copy of the letter where they paid me out or can we move on with this?

Going back to the thread, I think there is one important note I missed - My wife has no intention going back to work....EVER therefore concerns about her future prospects are irrelevant. I will be supporting us both comfortably. She has just completed a degree in Childcare and we are planning on starting a family.

Ok I'd like everyone to just take a breather and stop thinking about vendettas, personal interests and emotional aspects of this case. My attitude and how I express myself in this thread holds no bearing to the outcome of this case. This is a legal dispute and the following is all that matters:

1. Did the company follow procedure?
2. Are the company allowed to rectify mistakes for a bad procedure and are those rectifications deemed reasonable?
3. Was dismissing the employee the appropriate action or could a less severe punishment have been given?
4. Was this a fair and balanced procedure or was it predetermined and biased?

Yes, the child protection comes into play however, the onus is on the employer to prove they conducted a fair hearing, which in my opinion, they didnt.

sho_me_da_money

dacouch wrote: »

Your Insurers are wrong.

Here is the Ombudsman rule on MOTs

"13. roadworthiness

Most motor policies contain an express requirement that the vehicle must be maintained in a roadworthy state. If so, where there is good evidence that the loss or damage was caused (or substantially contributed to) because the vehicle was unroadworthy, we are likely to consider it fair for the insurer to reject the claim.

In other cases, the insurer might reduce the payout on the basis that the vehicle was not in good condition. If so, where there is good evidence that the vehicle would have failed an MOT test, we are likely to consider it fair for the insurer to take this into account in assessing its value."

Note the Ombudsman has a difference to "Roadworthyness" and the lack of an MOT

http://www.financial-ombudsman.org.uk/publications/technical_notes/motor-valuation.html

Here is the relevant rule from the FSA who regulate all Insurers

"An insurer must:

(3) not unreasonably reject a claim (including by terminating or avoiding a policy); and

A rejection of a consumer policyholder's claim is unreasonable, except where there is evidence of fraud, if it is for:

(3) breach of warranty or condition unless the circumstances of the claim are connected to the breach"

What it's saying in English is an Insurer cannot refuse a claim for an unrelated clause eg your house burns down due to a faulty washing machine but they had a clause in the policy saying you had to use certain locks and you did not use them.

In relation to a lack of an MOT it means the Insurer has to pay out unless the car was "Unroadworthy" AND the car being unroadworthy directly or significantly cause the accident eg you had faulty brakes and went into the back of someone. Not having an MOT does not make a car unroadworthy, you car could have got an MOT last week and be unroadworthy now.

http://fsahandbook.info/FSA/html/handbook/ICOBS/8/1

Here's the OP's relevant thread https://forums.moneysavingexpert.com/discussion/2353569 I can assure you that he's not the only one in his position that got the same advice and received a payment from their Insurers after initial refusal following advice from MSE members

Thanks Dacouch.

I have the original letter awarding me the payout too. Some people just don't get it. The law is the law and it must be followed.

This thread has become exactly like the MOT issue where feelings and best educated opinions/guesses seem to lead the way. People are forgetting there is a LAW and it must be followed. If it can be proven the employer did not act in accordance with the LAW, they will be held responsible irrespective of what the employee did.

The onus is on the employer, NOT, the employee.

SuzyZ

sho_me_da_money wrote: »

I got paid out. The great and almighty Dacouch started it by pointing me in the right direction and I finished it by arguing a term in law known as Contra Preferentum. Must you need a copy of the letter where they paid me out or can we move on with this?

Going back to the thread, I think there is one important note I missed - My wife has no intention going back to work....EVER therefore concerns about her future prospects are irrelevant. I will be supporting us both comfortably. She has just completed a degree in Childcare and we are planning on starting a family.

If your wife isn't going back to work then why are you so bothered about it now? Concerns about her future prospects DO come into play actually. Because what will your wife be doing say 5-10 years down the line with her Childcare Degree? Personally I would be concerned that a future employer may employ her with/without her degree based on her experience which as of late (as you have stated here) hasn't been the best. As a few posters have said a lack of concentration caused another child to be injured.

Ok I'd like everyone to just take a breather and stop thinking about vendettas, personal interests and emotional aspects of this case. My attitude and how I express myself in this thread holds no bearing to the outcome of this case. This is a legal dispute and the following is all that matters:

1. Did the company follow procedure?
2. Are the company allowed to rectify mistakes for a bad procedure and are those rectifications deemed reasonable?
3. Was dismissing the employee the appropriate action or could a less severe punishment have been given?
4. Was this a fair and balanced procedure or was it predetermined and biased?

Yes, the child protection comes into play however, the onus is on the employer to prove they conducted a fair hearing, which in my opinion, they didnt.

I think you will find in the end that the company have conducted a fair hearing or as fair as it can be. They have followed procedure - ok they may have dismissed/not dismissed/allowed on sick leave (the dismissal was hard to work out as you stated it in the very first post) but they have followed procedure. It all comes down to common sense and also your wife DID NOT follow the Ofsted ratio - not her boss/colleagues but her, and due to her working 1:1 with another child another child was hurt. Do you NOT GET THIS? due to your wife's actions a child was hurt??!!

If your wife showed more humbleness here and ADMITTED SHE MADE A MISTAKE or two in the beginning by saying she should NOT have worked 1:1, taken her eye off the other child etc, then maybe just maybe her employers would have been more sympathetic. As it is, like someone else said - she is highly unlikely to get another job in childcare hence her degree is USELESS.

If I were her, sorry but I would think about retraining. Mud sticks in educational/pre school nursery environments (my mother was a teacher so I know all about this) and reputations/memories tend to count for a lot.

Sorry if this sounds harsh and it isn't what you want to hear but these are FACTS.

sho_me_da_money

SuzyZ wrote: »

I think you will find in the end that the company have conducted a fair hearing or as fair as it can be. They have followed procedure - ok they may have dismissed/not dismissed/allowed on sick leave (the dismissal was hard to work out as you stated it in the very first post) but they have followed procedure. It all comes down to common sense and also your wife DID NOT follow the Ofsted ratio - not her boss/colleagues but her, and due to her working 1:1 with another child another child was hurt. Do you NOT GET THIS? due to your wife's actions a child was hurt??!!

If your wife showed more humbleness here and ADMITTED SHE MADE A MISTAKE or two in the beginning by saying she should NOT have worked 1:1, taken her eye off the other child etc, then maybe just maybe her employers would have been more sympathetic. As it is, like someone else said - she is highly unlikely to get another job in childcare hence her degree is USELESS.

If I were her, sorry but I would think about retraining. Mud sticks in educational/pre school nursery environments (my mother was a teacher so I know all about this) and reputations/memories tend to count for a lot.

Sorry if this sounds harsh and it isn't what you want to hear but these are FACTS.

Sue

The company:

1. Informed her of a disciplinary meeting on a Friday inviting her to attend on a Monday without holding an investigation meeting? The rule of adequate time comes into play.

This is procedure?

2. The letter stated the allegation of bullying of harrassment will be dealt in accordance to the disciplinary issue and a child being hurt will be dealt as a performance issue that may require additional training (something you mentioned). Two Separate matters in one confusing letter. They also did not warn her of any potential dismissal as a result of this case.

This is procedure?

3. My wife continued to work for 4 weeks without suspension. She then went on sick leave when she received a NEW disciplinary letter outling more issues with her work. They also retracted the original performance issue and made it in a formal allegation all. whilst she was in the state of recovery

This is procedure?

4. Upon her expected return (next week), she was forwarded another new letter stating that she is not to return as she is suspended on full pay?

This is procedure? or should she have been suspended at the outset?

Yes, they rectified all these issues leading up to the hearing but the fact is they butchered up the procedure and improved there position as it went on - making it right, adding things, changing things etc etc.

How the hell is this procedure?

Her degree DOES NOT matter - it was a personal achievement to gain her level 6. She is not going back to any kind of employment. I will be taking care of my baby and starting a new family. She can work from home and run my sideline.

Now do you want what I personally feel about this? Here:

1. The company has no HR dept and made it up as they went along
2. The company has no risk assessments and therefore had improper practices in place.
3. The company has changed like a chameleon in this whole process.

Of course, my personal feelings are not in play here. This is going to come down to proving who is right or wrong in the court of law.

mildred1978

sho_me_da_money wrote: »

Her degree DOES NOT matter - it was a personal achievement. She is not going back to any kind of employment. I will be taking care of my baby and starting a new family. She can work from home and run my sideline.

.

Says a lot that even her husband doesn't trust her with childcare.

sho_me_da_money

mildred1978 wrote: »

Says a lot that even her husband doesn't trust her with childcare.

I am going to give her 8 babies to take care of. She is an awesome person, a great wife and perfect carer.

I am actually in the process of starting up a nursery.

mildred1978

sho_me_da_money wrote: »

I am going to give her 8 babies to take care of. She is an awesome person, a great wife and perfect carer.

I am actually in the process of starting up a nursery.

Can't even begin to explain how hideous an idea this is (never mind the fact that you've BLATENTLY lied about your wife working in childcare again!!! Unless the babies you are talking about are dogs or hamsters.

sho_me_da_money

mildred1978 wrote: »

Can't even begin to explain how hideous an idea this is (never mind the fact that you've BLATENTLY lied about your wife working in childcare again!!! Unless the babies you are talking about are dogs or hamsters.

I was JOKING. Take a chill pill.

And where did I lie? The babies God willing be 8 beautiful and healthy born human babies.

You know what i buzz off - learning and increasing my knowledge every day. I think this whole process will be a learning experience for the both of us. Win or lose it doesnt matter (think ive said this 20 times already) but at least we'd know this entails.

ILW

sho_me_da_money wrote: »

I was JOKING. Take a chill pill.

And where did I lie? The babies God willing be 8 beautiful and healthy born human babies.

You know what i buzz off - learning and increasing my knowledge every day. I think this whole process will be a learning experience for the both of us. Win or lose it doesnt matter (think ive said this 20 times already) but at least we'd know this entails.

Is it fair to put your sick wife through this for what appears to be mainly a hobby to satisfy your own ego?

Uncertain

sho_me_da_money wrote: »

This is going to come down to proving who is right or wrong in the court of law.

No it is not!

For heaven's sake, despite the best efforts of a number of regular posters on this thread (who understand more about employment matters than you ever will), you totally fail to grasp the basics!

This is not a criminal matter where a jury or magistrates must be convinced of a person's guilt beyond a reasonable doubt. It is not even a civil matter which is decided on the balance of probabilities. It is an employment dispute which, if it ever gets as far as a tribunal, a decision will be made as to whether or not the employers actions were within the range of reasonable responses. That is all.

It is perfectly possible, not that you will understand this, to be fairly dismissed (in law) for a "crime" of which you are later proved to be totally innocent. All that matters is that the employer conducted an investigation and that it was reasonable for them to have held that belief at the time.

PLEASE read and think about what you have been told on this thread and be grateful that people have given the time.