Disciplinary action against daughter

[philip1988]

Hi, my daughter needs some help and advice. Apologies in advance for the length of the post.
She works as a care assistant in a home for mentally challenged young men.
Two weeks ago there was an incident when she took one of the boys to his music lesson. Whilst at the lesson the boy did a poo in his pants which she had to deal with. To cut a long story short the music teacher complained to head office saying that my daughter had:
a. had refused him food and drink before he attended his class
b. refused to clean the boy up
c. shouted at him
d. left the loo door open for all to see
e. called him a "walking disease"
The first that my daughter knew that there was a problem was when she received a disciplinary letter with a copy of an unsigned/dated witness statement from the music teacher. The hearing had been arranged for the day following receipt of the letter. As it was my daughter had to postpone the meeting as it was early in the morning and she is currently suffering badly from morning sickness. When she rang on the morning to rearrange she did point out that she had intended to attend but they hadn't given her reasonable notice to prepare for the meeting/arrange for someone to attend with her. The Head Office response was basically "tough" we can arrange a disciplinary meeting whenever they want.

When the letter for the rearranged meeting arrived the charge had been increased to gross misconduct. When my daughter spoke to her manager she said that they had increased the charge because she hadn't attended the first meeting. Surely they can't do this can they?
At the meeting my daughter asked why the charge was now gross conduct and they said they had been advised by their employment consultants. So which is the right version? Anyway she explained what had actually happened and how the allegations against her weren't true and how the statement contradicted itself. She also pointed out that there were no safety gloves available which contravened the companies infection control policy. Interestingly the same thing happened the following day when the boy went to college (different care assistant) and he had to be taken back to the home for cleaning up. As a result of these two incidents whenever the boy now goes out the carer takes gloves and a spare set of clothes. Anyway, fast forward and she received a letter to day issuing her a final written warning stating the following reasons:
a. she broke the companies care standards by shouting at the boy, him losing his dignity etc
b. how she should have taken safety gloves/spare clothes with her, even though there is no mention of this in his care plan and no other carer had in the past. In fact the care plan has still not been updated since the incidents
My daughter feels that she has been unfairly treated and is going to appeal.

The points she wants to raise are:
a. How the disciplinary charge was "grossed up" unfairly
b. how they haven't taken into account about how she explained how she dealt/spoke to the boy and they are taking the side of a witness who isn't trained in how to care for the boys and whose evident can't be collaborated
c. the company failed to provide correct infection control facilities and how her manager should have advised her if a special arrangements should have followed
Incidentally she never received or was directed to the current disciplinary procedures when she joined the company over 2 years ago, the reason cited was that they were updating the staff handbook. The first time she had seen the procedures was when they were included in the SECOND letter. Also she has an extemporary disciplinary track record and hasn't had any warnings of any sort before.

Sorry for the length of the post, any help/advice should be gratefully appreciated

[MissFM]

Re: Disciplinary action against daughter

Hi Philip1988 and welcome to Legal Beagles

a. had refused him food and drink before he attended his class
b. refused to clean the boy up
c. shouted at him
d. left the loo door open for all to see
e. called him a "walking disease"

Did any of the above happen?

Anyway she explained what had actually happened and how the allegations against her weren't true and how the statement contradicted itself.

What did actually happen? What do you mean by "the statement contradicted itself"?

b. how they haven't taken into account about how she explained how she dealt/spoke to the boy and they are taking the side of a witness who isn't trained in how to care for the boys and whose evident can't be collaborated

In your opinion, does the music teacher have any reason to make false accusations?

What training has your daughter had in "how to care for the boys"?

[philip1988]

Re: Disciplinary action against daughter

Hi Philip1988 and welcome to Legal Beagles . Thank you



Did any of the above happen?
She hadn't refused him food. It had been agreed with the manager before they left for the class that he shouldn't have anything after his lunch as he has a tendency to need the toilet immediately afterwards.
She didn't refuse to clean him up as she was in the process of doing so when the music teacher knocked on the door to see what was happening. Because he kept putting is hands where he shouldn't, there were no safety gloves, no spare clothes she went and rang her manager to see what she should do. The manager said bring the boy back as he was. Apparently the same thing happened the following day when another carer took him to college
She didn't shout at him though she did address him in an assertive manner as noted in his care plan. (he needs to be aware of who is in charge otherwise he can become agressive.
The loo door was only open for a very short while when the teacher knocked on the door
No she didn't use those words



What did actually happen? What do you mean by "the statement contradicted itself"?
The teacher said that she refused to clean up the boy, that is exactly what she said she was doing when the door was opened


In your opinion, does the music teacher have any reason to make false accusations?
Basically the teacher is not trained as a care assistant and she has misinterpreted what she has seen/heard.
What training has your daughter had in "how to care for the boys"?

Yes my daughter has received training but I can't be specific I am afraid. What I think made the situation worse was many different smells starts her morning sickness off. What with the obvious smell and having to handle things without gloves she was sick a number of times which obviously delayed the clean up and distressed the boy further

[charitynjw]

Re: Disciplinary action against daughter

Yes my daughter has received training but I can't be specific I am afraid. What I think made the situation worse was many different smells starts her morning sickness off. What with the obvious smell and having to handle things without gloves she was sick a number of times which obviously delayed the clean up and distressed the boy further

Hi philip,

Re the disciplinary meeting, did the employer advise your daughter of her right to be accompanied with an appropriate person?
If not, it is automatically unfair.

Re the above, is the morning sickness due to pregnancy, & is the employer aware of this, & the problems caused by the smell.?
If so, they are under a specific legeslative duty to make reasonable adjustments (Equality Act 2010 s18(2))
http://www.legislation.gov.uk/ukpga/2010/15/section/18

[philip1988]

Re: Disciplinary action against daughter

Hi philip,

Re the disciplinary meeting, did the employer advise your daughter of her right to be accompanied with an appropriate person?
If not, it is automatically unfair.

Re the above, is the morning sickness due to pregnancy, & is the employer aware of this, & the problems caused by the smell.?
If so, they are under a specific legeslative duty to make reasonable adjustments (Equality Act 2010 s18(2))
http://www.legislation.gov.uk/ukpga/2010/15/section/18

Hi

Yes the letter did state that she could be accompanied and she did.

The company did know that she was pregnant and let her carry a bowl around with her at work. They were well aware of different smells effecting her as she often had to leave the kitchen when they were cooking meals because of a particular smell. When they found out about the pregnancy a risk assessment was drawn up but nothing mentioned about smells. Possible it wasn't an issue at that early time.

Thanks for the link, how would they have known in advance so as to make reasonable adjustments that the smell of poo would set her off?

[charitynjw]

Re: Disciplinary action against daughter

s20 of the Act imposes a duty on the employer to make reasonable adjustments to any provision, criterion or practice which disadvantages any person with a protected characteristic.
http://www.legislation.gov.uk/ukpga/2010/15/section/20

[philip1988]

Re: Disciplinary action against daughter

s20 of the Act imposes a duty on the employer to make reasonable adjustments to any provision, criterion or practice which disadvantages any person with a protected characteristic.
http://www.legislation.gov.uk/ukpga/2010/15/section/20

Many thanks. Very useful information

[charitynjw]

Re: Disciplinary action against daughter

This may also be of use.
http://www.theguardian.com/money/201...imination-work

[MissFM]

Re: Disciplinary action against daughter

Hi Philip

Coming at this from a different angle, from what you say above, I have an overriding concern that neither your daughter nor the young man in question are being supported according to the young man's needs. To me, the situation sounds unsatisfactory and unsafe. Permission to carry a sick bowl is not a sufficient adjustment and sounds callous, even Dickensian, to me. No wonder the situation became distressing and unmanageable at the music lesson. People with learning disabilities need to be supported with a "worst case scenario" in mind at all times, which means adequate appropriately-trained staffing levels at all times.

If your daughter feels that the young man's care plan as implemented is inadequate and further safety measures - including more support (a higher staff ratio when out in the community, particularly during her pregnancy) - are necessary for safety and wellbeing then, IMO, she must stress these concerns to her managers as a matter of urgency.

If this falls upon deaf ears, contact the CQC, Mencap and whoever funds the young man's care (usually Social Services or CHC, or both) to raise her concerns.

She can do this anonymously. Even if it's only to talk things through, it may be helpful. Contact details for agencies that should be helpful here (page 6):

http://www.cqc.org.uk/sites/default/...nal_update.pdf

I'm sorry if this is not a direct answer to your questions but care managers must never be allowed to cut corners, it's just not fair to anyone, not to the carers and particularly not to the clients. To scapegoat someone who's been put in an impossible situation is simply not good enough.

I hope this helps.

FM

[enquirer]

Re: Disciplinary action against daughter

When they found out about the pregnancy a risk assessment was drawn up but nothing mentioned about smells.

She is pregnant and expected to handle excrement? She is required to work alone, and in close physical proximity to, clients with known aggressive tendancies?

This is a major lawsuit waiting to happen. It might pay to draw this to their attention.

[philip1988]

Re: Disciplinary action against daughter

Hi Philip

Coming at this from a different angle, from what you say above, I have an overriding concern that neither your daughter nor the young man in question are being supported according to the young man's needs. To me, the situation sounds unsatisfactory and unsafe. Permission to carry a sick bowl is not a sufficient adjustment and sounds callous, even Dickensian, to me. No wonder the situation became distressing and unmanageable at the music lesson. People with learning disabilities need to be supported with a "worst case scenario" in mind at all times, which means adequate appropriately-trained staffing levels at all times.

If your daughter feels that the young man's care plan as implemented is inadequate and further safety measures - including more support (a higher staff ratio when out in the community, particularly during her pregnancy) - are necessary for safety and wellbeing then, IMO, she must stress these concerns to her managers as a matter of urgency.

If this falls upon deaf ears, contact the CQC, Mencap and whoever funds the young man's care (usually Social Services or CHC, or both) to raise her concerns.

She can do this anonymously. Even if it's only to talk things through, it may be helpful. Contact details for agencies that should be helpful here (page 6):

http://www.cqc.org.uk/sites/default/...nal_update.pdf

I'm sorry if this is not a direct answer to your questions but care managers must never be allowed to cut corners, it's just not fair to anyone, not to the carers and particularly not to the clients. To scapegoat someone who's been put in an impossible situation is simply not good enough.

I hope this helps.

FM

Thank you for your comments. It is a mess, the boy did exactly the same thing the following day when he went to college (different carer) and even then they haven't updated his care plan/procedures. As far as the disciplinary is concerned various advice on this and another forum is for her to keep her head down and give them no reason to complain in the future. What is no upsetting for her is in one of the justifications for the final written warning was that she should have taken responsibility to take gloves/spare clothes with her. As she says it isn't in the care plan and it is the managers responsibility to introduce new procedures.

She has arranged a meeting with her manager t review her risk assessment as she feels that whilst she is having morning sickness it is not possible for her to have total control in looking after the boys when in a one to one basis. It will be interesting to see what they say

[philip1988]

Re: Disciplinary action against daughter

She is pregnant and expected to handle excrement? She is required to work alone, and in close physical proximity to, clients with known aggressive tendancies?

This is a major lawsuit waiting to happen. It might pay to draw this to their attention.

Exactly. As I said above to Miss FM they were expecting her to take the initiative and take gloves/spare clothes with her. As far as a boy with aggressive tendencies (the other boys are fine) in her pregnancy risk assessment it states that if a boy becomes aggressive towards her she is to walk away. That would have been interesting if she had done that. She has arranged to discuss with her manager sole working situations.

[enquirer]

Re: Disciplinary action against daughter

She has arranged to discuss with her manager sole working situations.

Make sure that she creates a paper trail - complaints, concerns and other correspondence in writing. Make sure to follow up any verbal meeting with a written confirmation of what was said afterwards.

[josefk]

Re: Disciplinary action against daughter

First of all, you're looking at the wrong act for now. Maternity issues whilst covered under equalities are better covered under the Health and safety at work act 1974 and the managing of health and safety regs of 1999. Management of regs are actually the better ones to use as it is managements responsibilities.

Download and read ACAS Code of practice 1. You will see for yourself the breaches in the code.

Was your daughter given code of conduct and disciplinary procedure on commencement of employment.

What is the training and subsequent policies regarding dealing with these issues with people in care.

Not sure I would go to much on no gloves in so far as a manager could argue that it would have been reasonably forseen given the person involved so where was the preparation regarding the individual care. As a health care trade unionist I go nowhere without gloves in my pocket for example. Just looking at a possible knock back on that issue under sect 7 of health and safety at work act 74.

There is obviously a lack of consistency in addressing similar situations so you could have an act of discrimination caused by the pregnancy as dismissing your daughter (if it happens) would save the firm maternity pay etc. Assuming it is a private health care firm with the bottom line paramount.

Walking away from a physical issue is one thing but adjustments are fluid and if your daughter was having a problem with smells then this would have had to then be an adjustment made, however as with all adjustments employers can only make them if they are aware or it is reasonable for them to be aware.

Is your daughter not in any union?

[philip1988]

Re: Disciplinary action against daughter

First of all, you're looking at the wrong act for now. Maternity issues whilst covered under equalities are better covered under the Health and safety at work act 1974 and the managing of health and safety regs of 1999. Management of regs are actually the better ones to use as it is managements responsibilities.

Download and read ACAS Code of practice 1. You will see for yourself the breaches in the code.

Was your daughter given code of conduct and disciplinary procedure on commencement of employment.

What is the training and subsequent policies regarding dealing with these issues with people in care.

Not sure I would go to much on no gloves in so far as a manager could argue that it would have been reasonably forseen given the person involved so where was the preparation regarding the individual care. As a health care trade unionist I go nowhere without gloves in my pocket for example. Just looking at a possible knock back on that issue under sect 7 of health and safety at work act 74.

There is obviously a lack of consistency in addressing similar situations so you could have an act of discrimination caused by the pregnancy as dismissing your daughter (if it happens) would save the firm maternity pay etc. Assuming it is a private health care firm with the bottom line paramount.

Walking away from a physical issue is one thing but adjustments are fluid and if your daughter was having a problem with smells then this would have had to then be an adjustment made, however as with all adjustments employers can only make them if they are aware or it is reasonable for them to be aware.

Is your daughter not in any union?

Thank you for your comments. I will get to have a look at H&S regs. No she isn't in a union but I have told her she should. They can't help he on the occasion but would be able to if there are further issues. They have dismissed two girls in the past just before they were to go off on maternity leave so it is a bit of a concern.