My daughter has worked for her employer for several years and is now suspended on full pay pending an investigation. She was promoted three years ago and took on responsibility for the rota, but has done this incorrectly so employees are or have been working 35 instead of 35.5 hours. Her training was carried out by her manager and head office have had the rotas regularly, but have not noticed any error until now. She has also been accused of not signing out a few months ago. If the working hours have been reduced in error how long is it before it becomes your working contract? Can you be disciplined over failure to sign out when other staff members have done the same without problems? Is this tantamout to constructive dismissal?
I note that your daughter has been employed for several years and is now suspended on full pay pending an investigation arising from an allegation that she incorrectly completed the Company rotas and may have failed to sign out earlier this year.
You have not advised how many employees have been affected by the incorrect completion of the rotas. It has therefore not been possible to determine the amount of hours of work the company may have lost. Working on the basis that this may be a serious performance issue, the employer must still be seen to be consistent in any disciplinary action it takes. If it is a case that other employees have also incorrectly completed the rotas, for as long or longer than your daughter, then the employer must be seen to treat all the employees consistently.
In addition, if it is also the case that your daughter has been given incorrect training on completion of the rota, if her manager comes forward to provide a statement which confirms this and if other staff have incorrectly completed the rota, these factors should assist your daughter in answering the disciplinary allegations.
As regards the alleged failure to sign out, you have not advised whether your daughter admitted the allegation when this was first raised with her. Assuming from what you have said that this is only now being raised some months later, your daughter may wish to ask her employer why this was not raised sooner with her. In addition, if there are other employees who have carried out similar acts of failing to log out and who are not been similarly disciplined, your daughter may also wish to raise this to defend/or answer any disciplinary allegations.
As regards your suggestion that this may be “constructive dismissal”, for a constructive dismissal, your daughter would have to demonstrate that the conduct of her employer, in investigating and carrying out a disciplinary process, amounted to a serious breach of her contract of employment. She would have to show that this breach was so serious that it entitled her to resign and that she resigned promptly in response to the breach.
I would not recommend that she resigns and claims constructive dismissal. If she did so, at this stage, it could be said that she jumped the gun and resigned before knowing the outcome of the disciplinary procedure.
In addition, constructive dismissal claims are particularly difficult to prove and I do not consider the circumstances as outlined by you to date could give rise to a strong constructive dismissal claim.
On the other hand, if her employer dismisses her, she may have a claim for unfair dismissal based on her employer’s failure to treat its employees consistently and the failure to train her properly in relation to completion of the rota system. If she is dismissed, she should immediately seek specialist employment advice. She should be aware that she must notify ACAS of her intention to bring a claim within three months less a day of the date of any dismissal.