Can You Believe It?

Mr M worked as a nurse at a residential care home. On 17 January 2003 he was suspended without pay following allegations that he had abused patients. His employers initially expected that the suspension would be for no more than 7 days, in accordance with his contract of employment.

However, M was charged by the Police with a number of offences. He was bailed on condition that he did not return to the care home. The Police asked the employer not to investigate his behaviour until after the criminal prosecution. M’s employers decided that they had no choice but to continue his suspension.

In the event M was sent to prison on 24 November 2003 for two years and four months after being found guilty of six counts of common assault and another of incitement to administer a sedative. M had, among other things, slapped an elderly resident around the head, hit another resident in the face with a toy and told a carer to put a sedative in a resident’s tea because she would not go to sleep.

M claimed unpaid wages from the end of the 7 day period of suspension laid down in his contract until the date he was sent to prison.

The employers, perhaps understandably, argued that his contract had automatically been brought to an end since M’s bail conditions prevented him attending work. They also argued that his contract had automatically come to an end when he assaulted his first victim in his employer’s care home.

Both arguments failed and M was awarded over £15,000 in unpaid wages for work he had never done.

So a man who has assaulted elderly people in his care and the care of his employers receives a cheque for £15,000. While I expect the vast majority of people who read this will think that it is a travesty of justice, the decision comes as no surprise to your average employment lawyer.

The employer was only allowed to suspend M for seven days without pay, under the terms of his contract. When it became clear that M was not going to be able to return to work after the seven days were up, the employer had a decision to make: it could have decided to reinstate M’s pay, without requiring him to return to work; or, more realistically, the employer should have started its own disciplinary proceedings. It should have carried out an investigation and held a disciplinary hearing following which it could have imposed as a sanction a continuation of M’s unpaid suspension.

Although this particular case was concerned with a claim for unpaid wages, there have been a number of cases where employees in similar circumstances have successfully claimed unfair dismissal when they have been sacked after being sent to jail. I know it seems ridiculous that if your employee is in prison you need to follow a procedure before you can dismiss them in a way which will avoid ending up in a Tribunal. However, many employers have fallen foul of this and ended up paying money to their ex-con employees.

Taking the facts of this case, if the care home had dismissed M, provided it followed its own procedures properly, and provided it genuinely believed he was guilty, then the dismissal would be fair, even if M was subsequently acquitted of the criminal charges.

Allegations of abuse by employees working with vulnerable members of the community and subsequent Police investigations are increasingly common.

Employees who work with the vulnerable should ensure that they always comply with policies and procedures adopted by their employers. If in doubt about what you should be doing, ask. Never leave yourself in compromising or potentially compromising situations.

Employers in certain business sectors would be well advised to look at revising their contracts of employment. For example an employer could include a clause entitling the employer in clearly defined circumstances to suspend employees without pay until charges have been dropped.

Published 27/05/2005.