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Invited to a disciplinary

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  • Invited to a disciplinary

    I am a tutor at a local college. I was recently suspended because the collage said they had a couple of complaints from students, but then they only dealt with one complaint from one student. The one student alleged that I called them a retard during a lesson, which I did not.

    The first investigation didnt tell me what the complaint was about, but my line manager had already told me beforehand. I was told at the investigation that a student had given their account of a particular lesson, and I was then asked to give my account of that lesson which was a few weeks prior. Based on what my line manager had told me, my account included that another student had referred to themselves as a retard and did so on several previous occasions.

    There was a further investigation meeting with me. That wasnt interested in the initial allegation, it was mainly concerning the other student referring to themself as a retard and why I didnt stop it. Then the investigator brought up something from last year that she had been aware of for some time but never dealt with, again it was related to what a student had said, this time during some training session. The investigator then told me this could be a link to repetitive behaviour on my part. It felt like the investigator was just gathering evidence against me and trying to make links to use against me.

    The disciplinary invite letter is regarding two alleged breaches of conduct, and the issues from both investigations are cited as reasons 'linked' to the breaches of conduct, but no investigation notes, statements or evidence establishing those issues as fact have been given to me. All they have given me are copies of the notes of the meeting they held with me, and copies of code of conduct, disciplinary procedures and harassment policy.

    Can I request copies of all the complaints they are relying on, and copies of all related investigation notes, and all the evidence they are relying on; because I suspect they havent conducted a proper investigation, havent got any evidence, and are simply jumping to conclusions and trying to find any little thing to support the allegations. Are there any other documents I should ask for? Thanks in advance
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  • #2
    I am not a legal expert and am here to get assistance for my own reasons, but I'm going to give you some pointers anyway from my own experience.

    First and foremost, you absolutely have the right to a defence - which includes information on what you have been accused of, access to the evidence, and copies of the investigation report, all within a reasonable timeframe of any disciplinary. I believe ACAS recommends 10 days (that's from memory) however from recollection that's a recommendation - my company and I think many go for the minimum 48 hours. Which personally I don't think is enough to review, and if necessary find, breif and consult an employment solicitor or another source of professional advice and prepare a response, but that's by the by.

    Secondly, a lot will also depend how long you've worked there, if you have worked there for under 2 years you have a lot less protection I'm afraid so it's worth confirming.

    I would consider, in your shoes - and I'm sure other posters will give a qualified opinion on this - I would consider raising a formal greivance on the following grounds at least:

    - A suspension on what appears to be not preventing someone using deragotary terminology to another seems quite strong and disproportionate, also it's not a neutral act as you are in a profession suddenly going absent people will think you've done something serious, on the back of that I'd look at this case for reference:
    - https://www.hayesandstorr.co.uk/susp...%9D%20reaction.
    - also on the note of suspension, it appears you haven't been made aware and allowed to challenge/react to the allegations at the point of suspension. I would raise the lack of information on what you're supposed to have done as well
    - Is a suspension necessary, the concept of a suspension is to prevent harm to yourself, colleagues, customers etc to allow an investigation into an allegation to take place. Could you do any other work, teach another class or do something temporarily whilst this is investigated? I ask because suspending you is a very strong act and there has to be a basis on which a suspension is merited (and the seriousness of the allegation itself isn't a metric of whether a suspension is necessary because it's not proven, suspension should ONLY be to allow for an investigation - so there has to be risk to the investigation).

    - The fact no evidence, allegations, witness statements etc has been provided to you other than investigation meeting notes. How do you know what you are challenging? You cannot defend yourself without being provided with the information and it's unreasonable to expect you to.

    - The fact that historic matters are being raised against yourself. If the organisation was aware, why didn't they act? Why now?

    - The general unprofessional treatment you are receiving and any resulting impact on you

    I'm sur ebetter advice will follow but that is what comes to mind immediately. Too many companies using suspension as a punishment IMO.

    In the meantime have a call with ACAS, in my opinion they are not that useful but will go through the basics of their guidelines and make you aware of options. Whilst a company doesn't necessarily have to follow their guidelines, if it goes to tribunal the award can be increased where they haven't.
    Last edited by Presonus; 5th October 2023, 09:47:AM.


    • #3
      If you are a member of a union, seek their support.
      Lawyer (solicitor) - retired from practice, now supervising solicitor in a university law clinic. I do not advise by private message.

      Litigants in Person should download and read the Judiciary's handbook for litigants in person: https://www.judiciary.uk/wp-content/..._in_Person.pdf


      • #4
        You are a tutor in a "local college". Is this an FE College or 6th Form College? If so the DfE statutory guidance "Keeping Children Safe in Education" applies to it and your employers should be taking it into account in their decision-making.

        Keeping_children_safe_in_education_2023.pdf (publishing.service.gov.uk)

        Note the section on Suspension, paragraphs 380 to 387. And the 'Duty of Care' the college has towards an employee against whom allegations have been made, paragraphs 361 and 388 to 390. These sections apply if the college provides education to students under 18 [paragraph 356], even if the student(s) who made the complaint are themselves over 18.

        As it is statutory guidance colleges are legally required to "have regard to it" in dealing with allegations against staff, and would need a good reason not to follow it [page 3]. Even if your college isn't covered by this guidance you can still cite it as best practice in education settings.
        All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.


        • #5
          I will also add, in case it makes a difference, that I was suspended about an hour after the first investigation. The suspension notice doesnt state I was suspended because it was alleged i called a student a retard, it states I was suspended because I called a student a retard. Bare in mind that nothing had been established at this point.


          • #6
            Originally posted by NoPaddle View Post
            I will also add, in case it makes a difference, that I was suspended about an hour after the first investigation. The suspension notice doesnt state I was suspended because it was alleged i called a student a retard, it states I was suspended because I called a student a retard. Bare in mind that nothing had been established at this point.
            On top of that, the disciplinary invite letter doesnt state anything as allegations, it states everything as fact, that it happened. Could this be seen as pre-determination of guilt?


            • #7
              Originally posted by Presonus View Post
              That case has been updated:

              Seems that the High Court had erred in that decision.
              Last edited by NoPaddle; 6th October 2023, 09:10:AM.


              • #8
                My apologies! But interesting to know

                It does highlight I guess that nobody seems to know in these situations - the amount of times you see the EAT disagreeing with the ET it makes you really wonder if there is any justice.

                I see, in my research lots of instances of employers using suspension almost with impunity for a lot lesser matters, in fact - I'm sure we'd all agree that hitting a student (even in self defence) at the investigation stage is quite up there in terms of seriousness and need to investigate.

                A friend of mine has just been dismissed/suspended (we're having to guess which) after ten years from a construction company, he fell out with the boss and was simply told not to show up the next day. He quizzed for a reason and just got back (in writing) because I'm the boss and i told you not to come back. That's going to be an interesting one.


                • #9

                  Bear in mind that whether it is "reasonable" to suspend someone will always depend on the specific facts and the context of the education setting. In the case you linked the teacher was teaching infant children, 6 and 7 year olds, and had on 3 separate occasions physically assaulted them in the classroom (allegedly). The mystery to me is why the teacher wasn't suspended after the first incident!

                  That's a very different context to your Post-16 provision with no allegation of assault or physical contact or threats.
                  All opinions expressed are based on my personal experience. I am not a lawyer and do not hold any legal qualifications.


                  • #10
                    On that note I think it retains some value, you couldn't really get a more serious allegation in a school setting - and yet it was so close to the wire.

                    I am NOT saying the circumstances are the same, but be aware and scrutinise how you're being treated because suspension is a serious act - certainly.


                    • #11
                      Ive received copies of most of the documents i asked for including the initial complaint. I have been led to believe that a student complained because i called them a retard. The actual complaint is not even from a student, its from a students mother and it complains that i call a different student a retard which upset her daughter. Yet the person i allegedly called a retard has made no complaint and has not been interviewed as part of the investigations.

                      How do i deal with this?


                      • #12
                        Is there any employment case law regarding how long an employer has to investigate an alleged incident? Is 12 months after the alleged incident too long a time to investigate?


                        • #13
                          Are you saying that the alleged incident in your post #1 and the one complaint for which you were suspended was 12 months ago?
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                          • #14
                            There are 2 incidents they want to use. The first one from a few weeks ago, the second one from 12 months ago that the investigator knew about at the time but never dealt with. My union rep has requested that they remove the the incident from 12 months ago, but they refused as the want to rely on it when making a decision.


                            • #15
                              The first incident from a few weeks ago is related to the complaint, the second incident from 12 months ago is something the investigator decided to throw at me during the investigation.


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