SAFEGUARDING A Fine Balancing Act


Treating employees fairly and being able to justify any actions by following correct procedures can help minimise any potential fallouts, including employment tribunal claims, explains Deborah Nicholson, Head of Crime and Regulation at Markel Law.


According to the King’s Fund, there were around 1.5 million people working in adult social care in England as of July 2021, including around 865,000 care workers, 87,000 senior care workers and 36,000 nurses, most of whom are employed by small and medium-sized private providers.


Given these numbers and sector’s regulatory requirements involved, safeguarding issues will inevitably need to be dealt with. However, employers can sometimes have a difficult balance act to make when it comes to safeguarding vs employment rights.


Deborah Nicholson, Health and Social Care Specialist and Head of Crime and Regulation at Markel Law, outlines how employers can minimise their risk when an unclear situation arises.


Whilst adult care organisations must care adequately for the people they are responsible for, it is important that employees are also allowed to maintain their rights. Treating employees fairly and being able to justify any actions by following correct procedures can help minimise any potential fallout, including employment tribunal claims.


PUTTING YOUR PROCEDURES IN PLACE


An organisation should have its own set of documented procedures. These are usually contained in an employee handbook and provided at induction. Evidence that this has been done should be documented and staff should be reminded of their obligations at regular intervals. Importantly, employees need to understand the procedures and how to apply them. Moreover, they should be flexible enough to deal with different scenarios an employee could face.


DECIDING WHEN, AND WHEN NOT TO,


TAKE ACTION There is never a 100% degree of certainty with a question like this, but employers can document the answers to a series of questions to make sure their rational for taking action stand up to scrutiny.


Is it clear what has happened and who was involved or are further investigations required? Do you have evidence to back up your claims? If a resident was involved, what is the welfare status? Did you quickly assess the risk and take any interim mitigation steps? Is this a case of alleged abuse and/ or inappropriate behavior? Is dishonesty alleged? Who has been appointed to investigate the concerns and can they independently? Has there been an error relating to resident care, for example, prescribing the wrong medication? How seriousness is the offence (in the employer’s opinion)?


Whilst not being comprehensive, documenting answers to questions such as these could be invaluable in the future.


- 26 - WHEN AN


INCIDENT OCCURS When disciplinary action appears warranted, it is important to always work to the principle of treating the employee proportionately and fairly.


The following is a useful checklist of the key steps to take in the event of disciplinary action:


•


Initial communication - inform the employee of the allegations against them in confidence and in writing before the initial disciplinary meeting. Provide supporting evidence at this stage and ensure the employee understands they can be accompanied to the meeting.


• Potential action - during the disciplinary meeting, make clear the potential action that could be taken and which management have the authority to take action.


• Challenge - employees have the right to challenge the allegations before them so make sure this opportunity is provided before a decision is reached.


• Appeal – employees also have the right to appeal so ensure you provide information about how to do this.


“When disciplinary action appears warranted, it is


important to always work to the


principle of treating the employee proportionately and fairly."


CONDUCTING INVESTIGATIONS AND


PROVIDING SUPPORTING EVIDENCE Given the importance conducting investigations thoroughly and collating accurate and comprehensive evidence, this article will look at the subject in closer detail.


Failure to investigate thoroughly can result in a successful counter challenge by the accused at tribunal. Regardless of what management think, going through the proper process, including taking witness statements and interviewing people, is vital. A case must be based on evidence - speculation will not stand up to a tribunal’s scrutiny.


www.tomorrowscare.co.uk


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