Can you claim constructive dismissal whilst suspended?

[UtterlyDesperate]

This is a very idenyifying situation, so I am really wary of posting specific details though I appreciate they would help.

I have been suspended at work based on two allegations - the first is ridiculously untrue and the second is, unfortunately, true, but there is mitigation slightly as it was result of an issue caused by their failure to make reasonable adjustments (not excusing myself)

I have seen similar things happen before, and there is no way that they are going to investigate and clear me. I have been asked to give in my ID, keys, company property etc, forbidden to talk to/contact anyone and have lost access to my email and company website.

There is no commercial reason to do this, and it has no bearing on the allegations. However, it means I can no longer access company policies (about gross misconduct or discipline etc) or my inbox. So I can't access the evidence that proves they first allegation is nonsense, or demonstrate the failure to make reasonable adjustments that led to my panicked decision which resulted in committing the second allegation.

I feel the decision to cut me off over this is deliberate and a sign that they have made up their minds already that I am guilty of both. I am obviously devastated, as to be sacked for gross misconduct is career ending.

I am wondering whether just to resign now, but I am also quite angry that they are able to do this. Men in the company have committed very flagrant gross misconduct, and it's been brushed under the table. I am a disabled person, who has been on sick leave recently as a result of my disabilities and workplace stress caused by bullying, but feel as a result of the suspension and denial of access, I can't even get the evidence I need to prove my innocence on one charge and demonstrate the cause of events in the other.

I'm sorry this is a long post, but am devastated (if you recognise me, please don't out me) and am just wondering what options I have. I'm furious with myself over the second allegation, although my actions were consistent with my diagnosis.

My union rep is away atm

If anyone has any suggestions or advice, I'd be grateful. I don't know whether to contact HR on Monday and admit the second allegation and claim mitigation, or whether to resign, or whether a tribunal is an option.

Sorry for the long post - I am also aware that I will need to pay for a solicitor: should I find a specialist in employment or disabilty?

Call ACAS on Monday for advice. If you feel it is likely the second complaint may be upheld then it may be better to admit sooner rather than later, but don't make that decision alone. If dismissal is the likely outcome you want to be able to negotiate re. Reference etc. How long have you worked there?

Thank you so much, Liz - I will do that. I 've been there for 8 years. It's a very niche career, so I am very unlikely to find a new position even with a reference, unfortunately.

I don't know whether or not they will be able to prove the second allegation, but as I know it's correct, I feel like admitting it is the right thing to do, but you're right, I will take advice.

It is very difficult to win a case for constructive dismissal. The fact they are putting you through a disciplinary process is not constructive dismissal, even if you believe the outcome is pre-ordained. Take advice but I would be surprised if you have a case for a constructive dismissal claim.

If you allow the process to take its course you may have a claim for unfair dismissal and/or disability discrimination.

ACAS advice in this kind of situation isn't always as good as it should be. It is worth checking to see if you have legal cover with your house insurance. If you do, it may be worth consulting a lawyer who specialises in employment law.

Whilst on suspension for allegations that could amount to gross misconduct it is normal to restrict access to company property, systems. However, as part of the investigation you should be provided with copies of the disciplinary procedure and should be able to ask for copies of any paperwork which might show that reasonable adjustments have not been made. I would speak to the HR team and ask their advice and ask for a copy of anything that you need. In This situation I would assign a member of my team to be HR support for anyone on suspension.
Have they written to you inviting you to an investigatory meeting?

Thank you, prh- I know constructive dismissal isn't what most of us lay people think it is, so I thought I would ask. I do have legal cover, so I will take your advice also and ask for an employment lawyer.

Thank you both of you for taking the time to reply.

Definitely get legal advice - good luck!

You can always talk to someone else in the union?

I would ask for supervised access to systems to access specific things needed for the investigation (if there are emails for example). That’s perfectly reasonable and should be permitted.

They should also be providing you with copies of th disciplinary policy if you’re unable to access them.

Nelly not yet; just told me that if I wasn't available when asked they would continue in my absence. I called HR immediately on receipt of the email but was told that my deisgnated person had literally just gone on leave and there was no-one else who could assist.

Frankly, the HR person in question has form for doing this (sending emails where you are very likely to need to speak to someone quickly but then not being available 90 seconds later) so I think this was also deliberate.

The person I spoke to in the office didn't offer to send any policies etc and just said no-one could do anything to assist me until the person with responsibility for my department is back from leave. Should I ring on Monday and ask for copies of all the relevant policies even so?

You can do a data subject access request to get hold of the emails / info they hold on you. They're often heavily redacted but could provide evidence for a tribunal.

Agree that it's not constructive dismissal, but without knowing more details it's difficult to suggest what it could be.

drspouse I'm going to ring the region on Monday - by the time I'd thought of that, it was after they'd closed. It's complicated a little as I am not in the union that's the most natural fit for my role. I've also asked whether I am allowed to communicate with my workplace rep as I've been told I can't speak with anyone except with HR permission so presumably need to wait until the right person is back in their office.

Hermione thanks so much for that suggestion - it hadn't occurred to me at all!
And thanks also flumpy

twosecs I'm so sorry - I know it's really frustrating trying to help someone without the relevant information. I'm just worried if I put too much here, and there's someone here from work/HR I might tip their hand or give them more evidence. (it's also gross misconduct to bring the company into disrespect )

I've told two friends what's going on, and both of them where "what?!" at the first allegation: it's a very odd allegation because it's clearly untrue and this is very easily checked.

Am I allowed to ask HR who made it, btw? That one was "we've received an allegation that..." and the second one was "we don't believe x"

I was wondering about a data subject request, but didn't know if it was too previous

Unfortunately you may find that even if you do gain access to your emails, they may no longer exist.

Happened to my friend so she had no evidence for her case

You could also post this in Employment Issues, some very wise people post there. Good luck

Thank you, Stop, for the suggestion - I'm about to go out but I'll post on employment this afternoon.

MyBoys that does worry me - sorry to hear it happened to your friend

Have you had a letter explaining that you are suspended pending a disciplinary investigation and inviting you to the hearing?

They should have included the disciplinary policy within this.

It is normal practise to suspend you from accessing the building and any systems including emails. This can also be normal practise if you are off sick.

Hi, Strawberry the letter had the allegations, that I was suspended immediately and the things about returning stuff/not using system etc and then telling me that if I didn't cooperate with the investigation, it would continue anyway.

There was a paragraph about what to do if the suspension lasted more than a month, and that was it. I haven't been invited to a hearing, and haven't been given a date or time frame or anything.

I looked on Acas yesterday, and it seems like to suggest that suspension should be discussed with you and that it should be a last resort only if sensitive information could be compromised, hence my query about that.

I would get in contact with HR and ask for a copy of the policy and also information about what the next step is and when you would hear back from them.

They need to be in touch with you throughout the full process and keep you up to date.

Perfect - thank you so much, Strawberry

I have no idea about law etc but I would have thought you should

A) provide evidence allegation unfounded

B) wait for them to provide evidence of their own belief - but have your details of events ready if they prove its true. I would actually lie but wouldn't discuss it either way with them.

Thanks, you!

Good luck today if you can get into your email/get HR to send you things/ meet with them/ contact someone at the union.

Total strike out yesterday, @drspouse - union "calling back" (didn't) and HR person "not available" whenever I called: hopefully I will at least get the union today.

Trying to figure out what comes next in terms of work/life too, so spent time on that instead. Getting not very far so far today, but hopefully I'll at least get hold of the union...