1. Citation Employment Law Update Tracy Winter Employed Barrister
Welcome
Citation Employment Law Update Tracy Winter Employed Barrister

2. TODAYS TOPICS
Safeguarding and Employment Law

3. CARE CLIENTS
Citation advised about 13,000 care sites across the UK and Northern Ireland. Many cases advised upon involve safeguarding breaches Majority involve, verbal, psychological, physical and financial abuse. Problems for some recognising safeguarding breaches in the first place

4. Problem
No universal methods of reporting safeguarding incidents Should the police be called? Length of time investigations take

5. Induction and Training
Care Certificate – Skills for Care
NVQ
Safeguarding Training - comprehensive
Must be able to recognise Safeguarding breaches and know how to report them
Understand what is the Duty of Candour and who is responsible to deal with it
Regular refresher courses
Team meetings – safeguarding updates

6. Is a breach of safeguarding always Gross Misconduct?
Safeguarding breach?
Is a breach of safeguarding always Gross Misconduct?
Physical abuse
Emotional abuse
Sexual abuse
Neglect and acts of omission
Financial abuse
Discriminatory abuse
Institutional abuse
Abuse includes resident to resident abuse

7. Investigating Safeguarding allegations
Investigate the matter promptly to establish the facts.
Decide appropriate action:
none,
informal,
formal.
Gross misconduct.
Suspension.
Procedure in operation
Carry out any necessary investigations to establish the facts of the case. The nature and extent of the investigations will depend on the seriousness of the matter. It is important to keep an open mind and look for all the evidence, not just evidence against the employee.
After investigation you need to decide whether disciplinary action is required, and if so, should it be formal or informal? If formal action is contemplated, you will need to hold a disciplinary hearing and you should contact the Citation Helpline at the earliest opportunity for advice and guidance.
Gross misconduct is misconduct of such a serious nature that it breaks the employment relationship. In a case of gross misconduct, the employee has already broken the employment relationship, and so there is no requirement for notice or pay in lieu of notice to be given. Obvious forms of gross misconduct are theft and working in competition with the employer.
If the allegation is of gross misconduct, the employee must be suspended (with pay) pending investigation and/or a disciplinary hearing. Suspension with pay could also be useful where it is believed that an employee’s continued presence on the premises could hinder the investigation process. Suspension with pay is not a disciplinary sanction and the Citation Helpline should be contacted if suspension is being considered.

8. The importance of keeping adequate records
Make sure that the record of the safeguarding incident is properly and fully completed.
Fill in any accident form/book if required ? Health and Safety report?
Inform Safeguarding/CQC promptly
Make sure that follow Duty of Candour guidelines
Biggest problem is where insufficient or incomplete documentation is available, particularly when CQC call, or if there is a Coroner’s Inquest.
Procedure in operation
Carry out any necessary investigations to establish the facts of the case. The nature and extent of the investigations will depend on the seriousness of the matter. It is important to keep an open mind and look for all the evidence, not just evidence against the employee.
After investigation you need to decide whether disciplinary action is required, and if so, should it be formal or informal? If formal action is contemplated, you will need to hold a disciplinary hearing and you should contact the Citation Helpline at the earliest opportunity for advice and guidance.
Gross misconduct is misconduct of such a serious nature that it breaks the employment relationship. In a case of gross misconduct, the employee has already broken the employment relationship, and so there is no requirement for notice or pay in lieu of notice to be given. Obvious forms of gross misconduct are theft and working in competition with the employer.
If the allegation is of gross misconduct, the employee must be suspended (with pay) pending investigation and/or a disciplinary hearing. Suspension with pay could also be useful where it is believed that an employee’s continued presence on the premises could hinder the investigation process. Suspension with pay is not a disciplinary sanction and the Citation Helpline should be contacted if suspension is being considered.

9. Time taken by outside agencies investigating
Police will often not want any action taken before they have carried out their investigations.
They can take a long time and during this time the employee/s on paid suspension – very costly.
Also Safeguarding may also take a long time carrying out their investigations and demand an employee is removed often, even where there is no corroborating evidence, which is a problem for employment law.

10. Is the safeguarding breach to be treated as Gross Misconduct?
Important to have non-exhaustive list of what is deemed to be Gross misconduct in disciplinary policy in Employee Handbook
Different providers have different levels of what they deem to be Gross Misconduct but must ensure that they apply their rules, policies and procedures equally and consistently
All staff must know what behaviour and actions constitute Gross Misconduct and be aware of the consequences

11. Suspension : Gross Misconduct
Suspension MUST only be considered if the allegation being investigated could amount to gross misconduct, thereby justifying the need for removing the employee from the workplace
What is gross misconduct ? - no statutory definition . Depends on the facts of each case but it is an act or omission which completely undermines the employment contract, ultimately justifying summary dismissal without payment of notice – i.e.: allowing the employer to treat the contract as being fundamentally breached. Examples in handbook.
Be cautious. Do not suspend unless sure. Loss of resources as employee is sent home on full basic pay.
Avoid suspension as a reaction. It can undermine procedure and notion of fairness. Consider what is known before acting.

12. Essential features of the procedure
Employees should be informed in advance of the
hearing,
allegations,
evidence.
Right to be accompanied. (Only for hearings, not investigations.)
Give employees the opportunity to challenge the allegations / evidence.
Sanction / help and encourage performance
Right to appeal.
Failure to follow a fair procedure
increased compensation.
Essential features of the procedure
The disciplinary procedure is designed to help and encourage all employees to achieve and maintain the company’s standards of conduct and performance. Although it often imposes sanctions it should be seen as a vehicle for correcting unacceptable behaviour and encouraging improved performance.
Employees should be informed in advance that there is to be a disciplinary hearing, the allegations against them and the evidence that the company intends to rely upon. The Helpline will assist the company in producing an appropriate letter to the employee containing this information.
The employee has the right to be accompanied by a work colleague or an accredited trade union representative (see later).
The employee must be given an opportunity to put their case in response to the allegations and the evidence presented before any decision is made.
Employers should allow the employee to appeal against any formal decision made. The appeal procedure is part of the disciplinary procedure.
Failure to follow a fair procedure can result in any tribunal award being uplifted by up to 25%.

13. The Investigation Prepare prior to any investigation meeting
Meeting is fact finding and no decision will be made at that point
Explore evidence in detail
Note and summarise responses to check for understanding
Ask employee to sign written notes at the end of the meeting
Ensure any witness statements are dated, checked and signed
All evidence should then be collated and considered.
It is possible that not all evidence is available yet – investigation ongoing
The investigation meeting is a more passive role for the manager presiding - to give the employee an opportunity to provide an account (and the management an opportunity to compare and contrast this account.)
Holding the Investigation Meeting
Make sure you have all the relevant facts and issues you wish to discuss to hand e.g. Witness statements, copies of any policies or procedures relevant to matter at hand. Ask probing open questions so as to establish a full picture of events and all relevant facts.
Make it absolutely clear from the start that the meeting is purely for fact finding and to investigate the issues surrounding the allegations of matters of concern and that you are not making any decisions at that point.
Written notes should be taken at the meeting and the employee must be given the opportunity to add anything they wish to at the end of the meeting. It is important that the employee reads and signs the notes as an accurate and true record.
Disciplinary action should only be considered if the evidence gathered warrants taking disciplinary action. The information should be passed to the person who is going to chair the disciplinary hearing.

14. The disciplinary hearing
Ensure the employee has been written to with details of:
-Date, time and venue of hearing.
- The allegations (avoid shopping list)
-Copies of evidence to be relied on including CCTV
-Right to be accompanied (work colleague or TU rep only – by statute.)

15. Appeals
ACAS Code minimum requirement and usually in handbook and any agreement – union ratified agreements will have more than one appeal level, but generally archaic.
Right of appeal within a time frame (5 days, say) must be stipulated in outcome letter and to whom appeal to be sent.
On written request, invite employee to a formal meeting but if grounds not stipulated then seek clarification in writing beforehand. Notify of statutory right to be accompanied (TU rep or colleague.)
The appeal should be dealt with by a manager not previously involved and without “unreasonable delay” – evidence willing.

16. QUESTIONS & ANSWERS

17. Thank you tracywinter@citation.co.uk 08458444848