Mrs M Raphael v Trentside Manor Care Ltd and others: 1305965/2018

EMPLOYMENT TRIBUNALS

Case No 1305965/2018

Between

Mrs M RaphaelClaimant

1) Trentside Manor Care Limited 2) Mr T Dhadda 3) Mr P DhaddaRespondent

Before

Employment Judge Liz Ord

Mr T Sheppard (instructed by Counsel) for claimant

Mrs M Peckham (instructed by Solicitor) for respondent

Date 30 March 2023

JUDGMENT

[1]The claimant’s complaint of unfair dismissal is well-founded and succeeds.

[2]The claimant’s complaint of wrongful dismissal is well-founded and succeeds.

[3]The claimant’s complaint of disability discrimination under s15 of the Equality Act 2010 is well founded and succeeds.

[4]The claimant’s complaints of direct disability discrimination and direct age discrimination under s13 of the Equality Act 2010 are dismissed.

REASONS

The Issues

[1]By an oral judgment on liability delivered on 29 March 2023, the tribunal adjudged that the claimant’s complaints of disability discrimination, unfair dismissal and wrongful dismissal were well founded and succeeded.

[2]The case came before us again for remedy hearing on 30 and 31 May 2023 and we deliberated on 30 June 2023.

The Issues

[3]The issues for the tribunal were agreed at the hearing as being: Unfair Dismissal Award: What basic award is payable to the Claimant?

[2]What is the basic award, and would it be just and equitable to reduce it and if so, to what extent?

[3]Loss of statutory rights – is the claimant entitled to compensation for loss of statutory rights. If so, how much? Discrimination Claim:

[4]Compensatory award – what compensatory award is payable to the Claimant?

[5]What financial losses the dismissal caused the Claimant

[6]Whether the Claimant took reasonable steps to mitigate her loss

[7]Whether there was a chance the Claimant would have been fairly dismissed anyway if a fair procedure had been followed or for some other reason?

[8]Whether the Claimant’s compensation should be reduced and if so, by how much?

[9]Whether Acas code of practice on disciplinary and grievance procedures applies?

[10]If so, whether the R or the Claimant unreasonably failed to comply with it – if so, whether it is just and equitable to increase or decrease any award payable to the Claimant – if so, by what proportion. – up to 25%.

[11]Whether the Claimant contributed to her dismissal by blameworthy conduct – whether it would be just and equitable to reduce her award and if so – by how much?

[12]Should interest be awarded if so, how much and on the financial side. Mid-point from the date of the act of discrimination and the date the tribunal calculates the award – simple interest at 8% - Submissions from the parties on when the act of discrimination is – is it suspension, dismissal and/or appeal.

[13]If interest is to be awarded, how much?

[14]Injury to feelings – has the discrimination caused the Claimant injury to feelings – if so, how much compensation should be awarded for that –

[15]Should interest be awarded – if so, how much? – from the date of the discriminatory act to the date of award – simple interest at 8%.

[16]Should aggravated damages be awarded? Evidence 4. The tribunal had before it the following:a. A remedy bundle of 180 pages (RB);

b. The original liability bundle of 962 pages (LB);

c. A witness statement bundle of 27 pages;

d. List of issues;

e. Agreed mitigation earnings;

f. Hourly rates of pay;

g. Revised schedule of loss dated 29.6.2023. 5. It heard evidence on oath: a. from the claimant and from her husband, Mr John Raphael. b. from Mr Pargan Dhadda for the respondents. The Law 6. The tribunal considered the law as referred to by the claimant’s and respondents’ counsel, and as set out in the “Respondents Submissions for Remedy Hearing 30-31 May 2023”, and the “Revised Schedule of Loss On Behalf Of The Claimant”. Facts and Discussion Prior to dismissal, was the claimant’s working week 4 or 5 days? 7. The claimant normally worked a 5 day week from Monday to Friday, although she wanted to explore the possibility of working a shorter week. She was stressed, largely due to implementing of the General Data Protection Regulations (GDPR) within the care home, which she found a big responsibility and a worry, particularly as she had little support. 8. There were 2 meetings between the claimant and Pargan Dhadda on 4 and 16 May 2018 when the claimant asked to reduce her hours to a 4 day week in order to avoid going off sick. On 16 May it was agreed that a 4 day week could be trialled. Pargan Dhadda told her to check whether it was acceptable to the Care Quality Commission (CQC) and, if so, put a plan in place. Sarah Ireland (Inspector for adult social care) at the CQC confirmed on 22 June 2018 that she was content with the proposal, subject to monitoring. 9. The claimant started the 4 day week trial on the week commencing 18 June 2018, with Friday being her day off work. The claimant gave evidence that this was on an agreed trial basis for 3 months. We accept this evidence. 10. She only took off 2 Fridays before being dismissed, which were the Fridays of 22/6 and 29/6. As her dismissal was during the trial period, when there was no permanent change to her terms and conditions, she was still contracted to work 5 days a week on a permanent basis. Therefore, we find that, at the time of dismissal, she was contracted to work 5 days a week. Week’s pay 11. In essence, a week’s pay is the gross contractual remuneration an employee is entitled to be paid when working their normal working hours each week. 12. The claimant was paid basic gross pay of £25,000 at the time of her dismissal, which equates to £480.77 per week gross. 13. However, she also received a weekly bonus based on occupancy levels, the aim being to fill beds in the home. In evidence, Pargan Dhadda said he agreed to this bonus structure in around 2014/2015 instead of a salary increase. The claimant submitted an occupancy report to him and this was used to determine her bonus. 14. Mole Mining Ltd. v Jenkins

[1972] ICR 282

provides that it may be possible to infer a contractual term that a regular bonus will be paid, such that it falls within renumeration. We infer from the evidence that the bonus was a contractual term and accordingly part of remuneration. 15. Based on the last full 12 weeks’ pay, the parties agree that the claimant’s gross weekly pay including bonus was £580, and that the claimant’s net weekly pay was £449. We accept these figures. Loss of statutory rights 16. The claimant was employed by the respondent from 1/8/2011 to 21/8/2018, amounting to over 7 years. It would take the claimant 2 years to reacquire the right to claim unfair dismissal or a statutory redundancy payment, and 7 years to reacquire her lost statutory notice period. This is a significant time period and consequently we find that an award of £500 would be just and equitable. Financial losses Past Loss to remedy hearing

The Law

[17]The claimant was 64 years old when she was dismissed (d.o.b 3/10/1954) and worked 45 hours per week (p59 LB – original offer letter of 27/6/2011). We asked ourselves how many days per week she would have been working going forward.

[18]She was working a trial period of 4 days per week and had been succession planning for some time by training up Amanda Jones. Amanda stood in for her at times.

[19]The claimant was not in the best of health and suffered from a number of medical conditions. She had suffered a stroke in 2015, she had Chronic Obstructive Pulmonary Disease (COPD) and a chronic heart condition. Her energy levels had reduced and she often felt tired.

[20]Whilst the implementation of GDPR would no longer be a significant issue going forward, there were always going to be substantial pressures working as a manager in the home. The claimant had said in evidence that she needed the 3 day break each weekend to recover, and we find that she would have continued to need it. We find that she would have completed the 3 month trial of working 4 days per week and that at the end of it, her contract would have been permanently changed to 4 days.

[21]The claimant had told the respondent that she was going to retire when she was 66 years old, although in evidence she implied it was a throwaway comment, pointing to the fact she is still working now, albeit in a different job and for less hours. She said she had no firm plans to retire at that age, and she loved the care home and the residents, and it was an important part of her life.

[22]However, her medical conditions were not getting any better and her health would not have allowed her to carry on indefinitely in the management role. It would not have been feasible to reduce her days any further, say to 3 days, as the responsibilities of the role were too demanding.

[23]Having trained up Amanda Jones, we find that the claimant would have given up her management position on her 66th birthday (3/10/2020), when she was able to draw her state pension. Therefore, her manager’s salary would have stopped on 2/10/2020.

[24]However, it would have been a huge wrench for her to leave the home and she would not have done so voluntarily at that stage. We find that she would have stepped down to the role of Senior Carer on her 66th birthday and let Ms Jones take over the management. It is likely that she would have wanted to reduce her hours due to her health issues and we find that she would have gone down to a 3 day week on her 66th birthday and continued on this basis until her 70th birthday (3/10/2020).

[25]The employees at the care home were given an annual salary increase each April, although the claimant stopped getting an increase from 2015. Pargan Dhadda’s evidence was that the claimant received a bonus instead. However, the purpose of a bonus is to incentivise, and is usually paid in addition to salary and not instead of a normal pay increase. The claimant did not make any agreement to forgo pay increases, which reduced her basic pay in real terms. We find that, had there been no discrimination, the claimant’s salary would have increased in line with that of other employees.

[26]We accept the net weekly salary figures set out in the claimant’s revised schedule of loss and we have used them to calculate her financial losses up to her 66th birthday on the basis of a 4 day week (see calculation below).

[27]From her 66th birthday, she would have earned a Senior Carer’s wage, which at that time (3/10/2020) was £9.79 per hour (e-mail of 31/5/2023 on hourly rates). So working a 3 day week, she would have earned a gross weekly wage of 3/5 x 45 x 9.79 = £264.33 (13,745.16 per annum). This would have increased on an annual basis. Mitigation of financial losses

[28]The burden of proof rests with the employer to show the claimant failed to mitigate her loss.

[29]After her dismissal, the claimant’s confidence was shattered. She had dedicated over 20 years to the care sector and loved the work and the people she cared for. Having an unblemished record, it was hard for her to take the sudden and unexpected accusation of gross misconduct, and to have her livelihood snatched away. Nothing like this had ever happened to her before. Her health was fragile and she had been under considerable stress.

[30]Consequently, she struggled at first to seek employment and we accept at the time she did all that she could reasonably be expected to do. Despite her health, she managed to start applying for various jobs (full time and part time) in the retail sector, and created a table of some of those jobs (RB 95).

[31]She gave evidence that she applied for more jobs than this, but she had not written them down and could not remember the details as it was so long ago. These other jobs were usually on line or she just called into shops in person to ask whether there was any available work. She was a credible witness and we accept this evidence.

[32]She was restricted in the type of jobs she could do, as she was unable to type and for the past 20 years she had only worked in the care sector, thereby limiting her skills. She did not apply for jobs in the care sector, except for one, which was with a care recruitment agency (Total Jobs Catering) from whom she heard nothing.

[33]The claimant gave evidence that, to get a role in the care sector, she needed to produce an Advanced Disclosure and Barring Service Certificate and she was unable to do so because of her dismissal for gross misconduct. The CQC and the County Council were aware of her dismissal and this tarnished her reputation. It was only from the date of the tribunal’s liability judgment that she felt her name could start to be cleared and she became more employable. We accept this.

[34]In November 2018, the claimant managed to get a part time, temporary job with Boots over the Christmas period. She worked from 16 November 2018 until 4 January 2019 and earned a net figure of £2,219.97 (agreed by the parties). She continued to apply for other jobs during and after this period.

[35]She was unable to secure any other employment until the following Christmas when Boots took her on again on a part time basis (18 hours over 3 days). Initially, this was for a temporary period from 4 November 2019 until January 2020. However, the claimant’s contract was extended on several occasions and she became a permanent employee. She is still working there now.

[36]We find that the claimant became settled at Boots by the Spring of 2020. Then the Covid lockdown occurred in March 2020 and there was a significant reduction in job opportunities. Jobs in the retail sector became few and far between. Boots was an essential retailer during Covid and that gave her some job security. Therefore, it was not unreasonable of her not to look for work at that time.

[37]By the Autumn of 2020, more employment opportunities became available. However, the claimant reached her 66th birthday that October, and was able to draw her state pension. We find that, from then onwards, she stopped looking for jobs.

[38]In conclusion, we find that the claimant did what she could reasonably be expected to do to mitigate her loss up to her 66th birthday on 3/10/2020. Thereafter, she ceased mitigating her losses and is not entitled to be compensated from then onwards.

[39]The parties have agreed the net annual mitigation earnings for the financial years 2019/2020 (£3,845.11) and 2020/2021 (10,342.37), and we accept those figures (the latter of which we have pro-rated). Whether there was a chance the claimant would have been fairly dismissed anyway

[40]The respondent’s case is that the claimant would have left the care home about 3 to 6 months after the dismissal in any event because of her poor health. They say that the job was physically demanding and she was struggling to cope.

[41]The claimant’s case is that she loved her job and had no intention of leaving. She always took residents around the home and to the toilet, and washed and dressed them. She did inspections, including upstairs and in the grounds, and checked on building works that were being done at the home. Whilst she had a small tremor in her hand, her arm did not shake, and her knees were fine after having arthroscopies. She had not been required to shield during Covid.

[42]We accept the claimant’s evidence. Whilst she had less energy than previously, she was still able to do her job satisfactorily and there was no indication from the respondent that she might be dismissed on capability grounds. She would not leave voluntarily because she loved the job and the residents.

[43]Pargan Dhadda suggested that she would not have been able to get through the Covid pandemic at work. However, she was not classed as vulnerable during the pandemic, and she was very capable and able to draw on a wealth of experience. We have no reason to believe she could not have continued working throughout Covid in the care home. In fact, she did work throughout that period in the retail sector for Boots. We therefore find that she would have continued to work for the respondent throughout the Covid period.

[44]We conclude that there was no chance that the claimant would have been fairly dismissed in any event and we make no reduction on this count. Whether there should be an ACAS code of practice uplift

[45]There were substantial failings in the disciplinary process. Pargan Dhadda had wanted to dismiss the claimant for some time and had discussed it with his HR advisers. He was looking for the first opportunity to do so. When he thought he had found it, he immediately proceeded, as quickly as possible, to put in motion basic disciplinary steps, simply to attempt to satisfy compulsory procedural requirements. He had no real interest in finding out whether the claimant had actually committed any misconduct.

[46]Pargan Dhadda purported to undertake an investigation, albeit with serious flaws and no proper consideration of the allegations. The claimant was not given all relevant documents in that a crucial risk assessment, handover notes, and statements from Janet Paterson, Daisy Bourne and Amanda Jones were missing.

[47]On the other hand, Pargan considered other documents, which were either irrelevant or improper to have before him, namely his own witness statement, and a grievance against the claimant by Cassey Brindley on an entirely different matter.

[48]Many other documents had been sent to the claimant at very short notice and in a chaotic and piecemeal fashion. Incomplete Personal Care Plans (PCPs) were shown to her, although she was given no opportunity to comment on each of the alleged failings.

[49]Consequently, the claimant had inadequate opportunity to consider the case against her and to properly defend herself. She gave evidence that she felt Pargan Dhadda was not listening to her. We accept that evidence.

[50]The disciplinary process was kept in the family with Pargan Dhadda firmly in control all along. The disciplinary hearing was held by Bobby Dhadda, Pargan’s nephew, and he proceeded in a similar fashion to Pargan. The appeal hearing was conducted by his cousin, Harninder Kandola, with Pargan telling him what questions to ask. This was despite the fact there were senior managerial staff at the sister care home, Wilbraham House, who could have undertaken an independent appeal.

[51]Bobby Dhadda also failed to provide the claimant with the crucial risk assessment and handover notes, and gave her no opportunity to comment on the PCPs. There was no consideration of the claimant’s length of service or unblemished record.

[52]The outcome letter gave no indication of why the claimant’s explanations for her conduct were not accepted, and does not analyse why she was guilty of gross misconduct. There is no consideration of lesser sanctions. Other members of staff had previously received lesser sanctions for far more serious conduct, such as medication errors and duplication of medication.

[53]In conclusion, we find that the respondent failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures and, for the reasons given, we award a 20% uplift in compensation. Whether compensation should be reduced for blameworthy conduct

[54]The claimant made a minor error by not writing down her mental risk assessment, whilst under the significant pressures of work. If she had written it down, it would not have altered her decision. Amanda Jones was on duty after the claimant left the premises and it was reasonable for the claimant to assume Amanda would take over the situation.

[55]In any event, this was not the true reason for dismissing the claimant, but was simply an excuse. The real reason she was dismissed was because of her reduced energy levels, and need for flexible working which Pargan Dhadda had reluctantly agreed to. Therefore, it was these things, which arose out her disability, that led to the dismissal, rather than her administrative error.

[56]Therefore, there is no contributory conduct for us to take into account and we make no deduction. Whether interest should be awarded on financial losses

[57]There is no good reason not to award interest. Accordingly, interest at 8% is awarded from the mid-point of the date of the act of discrimination, which we take as the suspension (2/7/2018) and the date the tribunal calculated the award (6/7/2023) Whether the discrimination injured the claimant’s feelings

[58]The claimant suffered from depression from when she was young and her father died, and had been taking medication (Citalopram) to control it. However, after her suspension, her mental health significantly deteriorated. Whilst she was not suicidal, she was in a very bad way and felt it was the beginning of the end.

[59]She went to her GP, who diagnosed adjustment reaction and increased her dose of Citalopram. It remained elevated up to and throughout these tribunal proceeding as a direct result of the allegations and the dismissal. She did not seek further medical treatment. However, this does not mean she did not continue to suffer.

[60]She had worked in the in care sector for 20 years and the respondent’s home for 7 years. She was dedicated to the care home and had put in place many improvements. She loved the residents and got on well with the staff. She had a clean disciplinary record throughout her time at the home.

[61]Consequently, it came as a tremendous shock to be dismissed totally unexpectedly. She was terrified during the disciplinary process, as she was made to confront a stream of misconduct allegations. She found the allegations incredulous and they caused her great feelings of shame. She thought her world had collapsed and she felt worthless and useless. Her husband, John Raphael, gave evidence that she changed as a person after the dismissal and she was in a deep and dark place. We accept this.

[62]She was suddenly suspended and made to leave the care home without being able to say goodbye to her beloved residents, some of whom had been there since she started and with whom she had developed close relationships. Amanda stopped talking to her and the claimant felt she had lost a friend.

[63]She was concerned about what people might think of her, including her own family, and she became introverted and isolated. She felt too embarrassed to go out with friends or meet people on the street, and she stopped doing things she had previously done, like going to the theatre and visiting her son and daughter-in-law. Her son worked in a similar sector and they used to talk about work. She was not able to cope with talking about work any more.

[64]Delays in the tribunal process meant that the claimant endured nearly 5 years of suffering before her name was cleared and she could begin to recover. During both the liability and remedy hearings she was put under robust cross examination and had to relive the distressing events.

[65]In evidence, the claimant said she does not think she will ever get over it. We accept this.

[66]Having regard to all these matters, we conclude that the claimant’s injury to feelings claim falls towards the upper end of the middle Vento band. Accordingly, taking account of the Presidential Guidance of March 2018 for injury to feelings and psychiatric injury (following De Souza v Vinci Construction (UK) Ltd [2017] EWCA Civ879), we award £20,000. Whether interest should be awarded on injury to feelings

compensation

[67]There is no good reason not to award interest. Accordingly, interest at 8% is awarded from the date of the suspension (2/7/2018) and the date the tribunal calculated the award (6/7/2023).

[68]Whether aggravated damages should be awarded

[69]The respondents deliberatively withheld crucial evidence from the tribunal, namely the risk assessment and handover notes, until they were directly requested by the judge, thereby conducting proceedings in a disingenuous manner.

[70]The way in which Pargan Dhadda and Bobby Dhadda gave evidence was high handed and intimidatory, and was blatantly self serving.

[71]As a result, the claimant was put to additional, unnecessary distress.

[72]Consequently, we make an award of aggravated damages of £5,000. Calculation

[73]Wrongful Dismissal 7 full weeks’ notice pay 21/8/2018 to 9/10/2018: 7 x £456.18 £3,193.26 Compensation for Unfair Dismissal

[74]Basic Award At the effective date of termination, the statutory cap on gross weekly pay was £508.00. The claimant’s gross weekly pay at the time was £580.00 and so the cap applies. 1.5 x 7 x £508.00 = £5,334.00

[75]Compensation for Loss of Statutory Rights £500 Compensation for Discrimination

[76]Past Financial Loss From end of notice period to 66th birthday (net earnings) 10/10/2018 - 31/3/2019: 24.4 weeks x £456.18 x 4/5 £8,904.63 1/4/2019 - 31/3/2019: 52 weeks x £458.39 x 4/5 £19,069.02 1/4/2020 - 2/10/2020: 26.6 weeks x £461.23 x 4/5 £9,814.98 Total £37,788.63 Adjustments to past financial loss Mitigation earnings (net) 21/8/2018 – 31/3/2019

£2,219.97

1/4/2020 - 31/3/2021 10,342.37 Equivalent to £198.89 per week Pro-rated from 1/4/2020 to 2/10/2020 Equivalent of 26.4 weeks 26.6 x £198.89 = £5,290.47 Total mitigation earnings = £2,219.97 + £5,290.47 = £7,510.44 Past financial Loss after deductions £37,788.63 - £7,510.44 = £30,278.19 ACAS uplift on financial loss Uplift applied after mitigation earnings have been deducted We awarded 20% and so the uplift is: 0.20 x £30,278.19 = £6,055.64 Total financial loss after uplift £30,278.19 + £6,055.64 = £36,333.83 Interest on financial losses From the mid-point between suspension date and calculation date 1830 days from 2/7/2018 to 6/7/2023 mid point = 915 days 915 x 0.08 x 1/365 x 36,333.83 = £7,286.61 Total financial loss £36,333.83 + £7,286.61 = £43,620.44

[77]Injury to feelings compensation £20,000 Interest on injury to feelings compensation From the suspension date to the calculation date = 1,830 days 1,830 x 0.08 x 1/365 x 20,000 = £8,021.84 Total injury to feelings compensation £20,000 + £8,021.84 = £28,021.84

[78]Aggravated Damages £5,000 Interest on aggravated damages From the mid-point between suspension date and calculation date = 915 days 915 x 0.08 x 1/365 x 5,000 = £1,002.73 Total £5,000 + £1,002.73 = £6,002.73

[79]Summary of award Wrongful dismissal £3,193.26 Basic award £5,334.00 Loss statutory rights £500 Past financial loss £43,620.44 Injury to feelings £28,021.84 Aggravated damages £6,002.73 Total £86,672.27

[80]Grossing up Awards up to £30,000 are tax free. A marginal rate of 20% tax is assumed The basic award is not subject to grossing up (already gross) but it does form part of the tax free allowance. Including the basic award, £30,000 is deducted from the total and the balance grossed up. £86,672.27 - £30,000 = £56,672.27 to gross up 80% = 56,672.27 100% = 56,672.27/80 x 100 = 70,840.34

[81]Total compensatory award £30,000 + £70,840.34 = £100,840.34 JUDGMENT having been given orally on 29 March 2023, and the written record having been sent to the parties, subsequent to a request for written reasons in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure, the following reasons are provided:

Findings of Fact

[82]The claimant finished her shift at 15.30 and the WhatsApp messages continued until 20.43.

[83]Amanda’s shift finished at 4.00pm, after the claimant’s. The claimant said she assumed Amanda would inform the appropriate staff of the bed after her departure. Whilst the claimant did not complete the handover record, the system was that the senior on duty did this.

[84]That evening Pargan sent Amanda back to the home to do a risk assessment. He did not ask the claimant to go back and do it. He never told the claimant that he had sent Amanda back to do it. The claimant was unaware a written risk assessment had been done. It was not disclosed to her.

[85]The Hand Over Report of 28/6/2018 is signed by a Day Senior. It shows that a Risk Assessment was done by Amanda Jones on that date. That handover note was not shown to the claimant.

[86]The risk assessment of 28/6/2018, done that evening, shows a medium hazard rating for slips/falls. It notes: “resident A has a shelving unit against the wall at the end of his bed, that will prevent mattress from sliding from the bed temporarily. Staff not to move this unit.” “Profiling bed to be put into A’s room in the morning to prevent further risk.”

[87]The Personal Care Plan (PCP) for resident A for 28.6.2018 (b256-257) records that there is now a pressure relieving mattress and cushion (Daisy Bourne). A separate entry that day at 21.50 records the pressure relieving mattress being too long for the bed and a risk assessment having been completed and now in place for tonight (Amanda Jones). An entry of 29.6.2018 records “ – A now has profiling bed in place.”

[88]Another risk assessment was done on 29/6/2018 “– identified hazard – Pressure areas due to lack of mobility. Sores due to incontinence” “Hazard risk rating – High”.

[89]On the morning of 2/7/2018, Debbie Sherratt (the senior on duty) informed the claimant that the claimant needed to go to Pargan’s office, which she did. Pargan raised concerns with her about no written risk assessment having been done and resident A’s skin care paperwork not being updated. The claimant told him what had happened and that she had done a mental risk assessment.

[90]Pargan then took advice from Citation, after which he suspended the claimant. There is no record of this suspension meeting.

[91]He wrote an email to Sarah Ireland at the CQC on 2/7/2018 telling her of the claimant’s suspension and saying he had “a few concerns over her performance” (b236).

[92]He initiated an investigation. He chose who to interview to support his case against the claimant, and arranged the dates for the necessary meetings, in an attempt to comply with basic disciplinary procedure. Investigation meeting

[93]By letter of 2/7/2018 the claimant was asked to attend an investigation meeting on 3/7/2018 to answer the following allegations (b230), which were drafted by Pargan: - On Thursday 28/6/2018 – left a service user on an unsafe bed/mattress with high risk of falls - PCP – skin care had not been updated/reviews - No risk assessment in place - Failing to inform all the staff on duty or handover - 3 other PCPs has not been updated for Skin Care or Risk Assessed

[94]There were serious flaws with the paperwork which was before this meeting. The following was missing: - The handover record of 28/6/2018 - The written risk assessments of 28 & 29/6/2018 - Initial statements from Janet Paterson, Daisy Bourne and Amanda Jones.

[95]The following were included: - Pargan’s own witness statement (b351) - A grievance against the claimant by Cassey Brindley on an entirely different matter.

[96]In the amended notes of investigation meeting (b390) there is reference to Pargan showing the claimant copies of errors, and missing information in numerous files. He had produced copies of 3 patients’ PCPs highlighted in yellow to indicate where he believed the missing/erroneous information was. He also sent her a written list of all the omissions he had identified (b249-255).

[97]However, the claimant said she was given no opportunity to comment on each of these alleged errors or omissions. Pargan said he did go through each of them with her but he made no notes of it. There is no record of the claimant being asked for her comments on each of these alleged failures.

[98]We find that the respondents did not go through the alleged errors/omissions one by one and did not obtain the claimant’s comments on each of them.

[99]At the tribunal’s Full Merits Hearing, the claimant went through each of the alleged omissions, which were highlighted in yellow (b279-343), with the judge. She provided a reasonable explanation for the majority of them, whilst accepting that there were a few entries that were incomplete. Those that were incomplete were minor.

[100]The respondents did not have her response before them during the disciplinary process and consequently failed to consider important information. The substance of investigation meeting

[101]At the investigation meeting the claimant read out a statement (b239) answering all the allegations. - Allegation 1 and 3 - Regarding the mattress and risk assessment, she explained about the mental risk assessment and balancing the risk of falls against development of pressure sores. She admitted she had not done a written risk assessment. - Allegation 2 and 5 – PCPs – updating for skin care – she explained there had never been a requirement to implement skin management within the care plan. District Nurses notes were used. The CQC had never questioned skin care or raised any concerns with the recording method. - Allegation 4 – failing to inform staff or handover. She said the deputy manager was aware of the mattress and was on site after the claimant left. Neither of them made staff aware during handover or documented this. - Whilst the claimant did not complete the handover notes, this was not her job, and she made the respondents aware that the system was for the senior on duty to do this.

[102]She was remorseful and apologised.

[103]Nonetheless, she gave evidence that she believed Pargan was not really listening to her.

[104]Pargan knew that the claimant had brought in the PCP system from her role at Staffordshire County Council and she was responsible for its operation. He knew there had never been any criticism of it from the CQC. In the amended minutes (b390) it records the claimant telling Pargan that anyone could update the care plans and she reviewed them monthly. Disciplinary

[105]Following the investigatory, the claimant was asked to attend a disciplinary meeting with Bobby Singh Dhadda on 6/7/2018 (b398) to answer the same allegations. The date was then moved to 12/7/2018. She asked that her husband be allowed to accompany her, but was refused.

[106]The claimant took legal advice from Knights solicitors and on 9/7/2018 they sent the respondents a Letter (b384) setting out the claimant’s case in detail. On the back of this the claimant’s husband was allowed to attend the disciplinary.

[107]The claimant was sent numerous emails that day from Pargan producing piecemeal the documents for the disciplinary hearing.

[108]The claimant went off sick on 12/7/2018 to 9/8/2018 due to the stress of the disciplinary process and obtained a FIT note recording adjustment reaction (b404).

[109]The disciplinary meeting eventually took place on 14/8/2018. Again, there were procedural issues.

[110]The highlighted PCPs were again not gone through with the claimant at the meeting, and the invite to the disciplinary hearing made no reference to any formal guidance, standards or legislation (b362). The Amanda Jones’ written risk assessment and the handover record was not produced.

[111]Bobby Dhadda suggested the claimant was not qualified to assess pressure sores and should have taken the district nurses’ advice. However, the respondents did not consult any district nurses to get advice themselves to inform the disciplinary process.

[112]The minutes of the disciplinary meeting (b424-430) show that the claimant gave a similar account to what she had given in the investigatory. There was no consideration of her length of service or unblemished work record.

[113]In these minutes (b430) and in the claimant’s appeal letter (b435) there are comments on other members of staff who received lesser sanctions for far more serious conduct, such as medication errors and duplication of medication. This was not challenged by the respondents and we accept it as cogent evidence.

[114]The outcome letter (b432) dated 16/8/2018 but received by the claimant on 21/8/2018, summarily dismissed her for gross misconduct. It gives no indication of why the claimant’s explanations were not accepted and does not analyse why she was guilty of gross misconduct. There is no consideration of lesser sanctions. Appeal

[115]The claimant appealed on 23/8/2018 (b434) on the basis that Bobby Dhadda had not explained why her replies were deemed to be unsatisfactory, and she set out in brief her responses to the allegations. She submitted that the allegations were over exaggerated and did not amount to gross misconduct individually or collectively. She said dismissal was a disproportionate sanction and no consideration had been given to her unblemished record or length of service.

[116]The appeal hearing took place on 7/9/2018. It was conducted by Harinder Kandola, who was related to the Dhaddas, rather than by any independent senior staff from Wilbraham House.

[117]It was done by way of review. The appeal minutes (b441) show that Kandola makes the comments: “I’m coming to the questions I’ve been asked to ask” (b449) “we felt it was the only course of action” (b453)

[118]The claimant queried his independence.

[119]Before and after the appeal Mr Kandola spoke the Dhaddas. There is no note of what was said and the claimant was not informed.

[120]The appeal was not upheld. Other considerations

[121]The respondents declined to give voluntary disclosure of Citation advice notes to the claimant, and when this was ordered by the employment tribunal, they appealed the decision to the Employment Appeal Tribunal, indicating a fierce determination to avoid disclosure.

[122]The respondents failed to disclose key relevant documents until ordered by this tribunal at Full Merits Hearing to do so, namely the handover notes, particularly for 28/6/2018 and the risk assessments for 28/6 and 29/6.

[123]We have considered the credibility of the witnesses.

[124]The claimant came across as a straightforward, credible witness, answering questions to the best of her ability and making concessions where appropriate.

[125]Mr Pargan Dhadda tried to avoid answering specific questions and often gave responses which bore no relevance to the question. He appeared keen to impart the information which he wanted to impart. We found him to be self serving and unreliable. We found him not to be a credible witness.

[126]Mr Bobby Dhadda also tried to avoid specific questions, talked over the questioner and came across as belligerent, difficult and unreliable. We found him not to be a credible witness.

[127]The statements of Amanda Jones are unsigned. Amanda Jones was not called to give evidence. We give her statements no weight.

Discussion and Conclusions

[128]From 2015, being the time of her stroke, there is clear evidence, particularly in the Citation notes, that the 3rd respondent, Pargan Dhadda, wanted to get rid of the claimant. He asked for advice on sacking her, and paid little regard to Citation’s advice on health assessments and initially on reasonable adjustments.

[129]From then onwards he failed to give her a pay increase, even though other staff members received an increase. His attitude towards her deteriorated and there was an acrimonious meeting in March 2018 at which the claimant felt pushed to offer her resignation on terms.

[130]When the claimant put the request in for flexible working in May 2018, this was a tipping point and caused Pargan to ask Citation whether he could sack her.

[131]On getting more advice on reasonable adjustments, he reluctantly put a 4 day week in place from 18/6/2018, with the claimant having Fridays off work. She took only one Friday off (22/6/2018) before the incident with the mattress occurred on Thursday (28/6/2018).

[132]When writing to the CQC about her suspension, Pargan simply referred to he “having a few performance issues” rather than misconduct.

[133]If the mattress incident was really thought to be gross misconduct by the respondents, we would have expected the claimant to be contacted immediately or at least the next day (Friday). There was no contact over the weekend. Nothing was said until the Monday.

[134]That delay is at odds with the speed at which the disciplinary process subsequently took place: with the suspension meeting on the Monday (2/7/218), the investigation meeting on the Tuesday (3/7/2018), and an intention to hold the disciplinary on the Friday 6/7/2018). This demonstrates a keenness to dismiss as quickly as possible.

[135]Such a timeline would have given scant opportunity for the claimant to respond, and would not have afforded her the opportunity to pull together her thoughts. It was not indicative of an employer wanting to properly investigate the issues.

[136]The allegation that no risk assessment had been done was an exaggeration and was disingenuous. Pargan was fully aware that a written risk assessment had been carried out by Amanda Jones, as he had sent her back into the home on the Thursday evening to complete one.

[137]It is concerning to the tribunal that the respondent failed to disclose this risk assessment until the Full Merits Hearing, and then only when directly asked for it by the Judge. This was despite these documents being highly relevant to the case.

[138]Whilst the claimant had not done a written risk assessment, she made it clear to the respondent that she had done a mental risk assessment by balancing the risks of bed sores developing against those of falling, and concluded that falling was a small risk compared to the high risk of bed sore development.

[139]The bed was in the corner of the room, hemmed in by two walls and a chair and bookcase. It should have been obvious to the respondents that there was little risk of slippage or falls.

[140]In the claimant’s mind the mattress on the divan was a short term measure and she wanted to order a profile bed immediately, which she believed would have arrived the next day.

[141]Although the respondents said that she ought to have taken one of the spare profiling beds that were already in the home, she did not know they were there. In any event, she told them it was not good practice to swap beds between service users.

[142]There was no real attempt to investigate or seriously consider the claimant’s response. Pargan did not tell the claimant that Amanda had gone back to do the risk assessment. That was underhand. Had the written risk assessments of 28/6 and 29/6 been reviewed, the respondents would have seen that these documents corroborated the claimant’s evidence.

[143]Whilst at the disciplinary, Bobby Dhadda suggested the claimant was not qualified to assess pressure sores and should have taken the district nurses’ advice, the respondents failed to take such advice themselves as part of the investigation.

[144]In any event, they should have known that the claimant was fully able to assess the risk of bed sores, as this was part of her job. She had considerable experience and was the most experienced employee in the home. She was best placed to this. The Dhaddas, in contrast, had little if any care experience. They were not best placed to say there was a high risk of falls.

[145]It appeared that Pargan was just going through the necessary process. He was on a fishing expedition to find other evidence against the claimant and used the PCPs to bolster his case. The completion of the plans had never been criticised by the CQC and he knew this.

[146]Pargan never explored in detail or gave the claimant the opportunity to respond to the highlighted parts of the PCPs. The first time the claimant had an opportunity to do this was at the tribunal’s Full Merits Hearing at which she demonstrated that there was good reason for most of the alleged omissions. Where there were omissions, these were minor. The respondents were unreasonable in not exploring this.

[147]Regarding the allegation that the claimant never told anybody about the mattress, Amanda Jones was fully aware of it and Amanda’s shift ended after the claimant’s. It was reasonable for the claimant to assume that Amanda would inform the appropriate staff members about the mattress.

[148]The claimant also sent the WhatsApp messages to Pargan and Amanda about the mattress and the need for a profile bed.

[149]Whilst she did not complete the handover record, the system, was that the senior on duty did this. The respondents were made aware of this.

[150]The senior completed the handover as shown by the 28/6/2018 record. The claimant knew best how the system operated. This document was also not considered in the disciplinary process, despite its relevance and was only disclosed to the tribunal at the Full Merits Hearing, and only when asked for by the judge.

[151]The disciplinary outcome letter was not properly reasoned and did not consider the claimant’s long service and unblemished record, or alternatives to dismissal. Other staff had been guilty of far more serious misconduct and had received lesser sanctions.

[152]Pargan had a controlling influence throughout. He was intrinsically involved up to the disciplinary; he suspended, investigated, drafted the allegations, provided evidence himself, co-ordinated the dates, and chose who to interview.

[153]Before and after the appeal hearing, Kandola spoke to the Dhaddas. The disciplinary process was kept within the family, despite them having another care home (Wibraham House) with other senior staff who might have been more independent.

[154]Therefore, pulling all these matters together, we conclude that the respondents wanted to dismiss the claimant because of the impacts of her health. They had looked for an opportunity to do so since as long ago as 2015, and they thought they had found it when she made a modest slip regarding the mattress. They jumped on this as an excuse to get rid of her.

[155]From this, we conclude on the issues as follows:

[156]Unfair Dismissal 1. What was the principal reason for the Claimant’s dismissal and was it a potentially fair one in accordance with sections 98(1) and (2) of the Employment Rights Act 1996 (“ERA”)? The Respondent asserts it was a reason relating to the Claimant’s conduct. Answer: Her general health, tiredness, difficulty concentrating, low energy levels, and need to work less hours. 2. If the Respondents can show conduct was the reason for the dismissala. Did the employer carry out as much investigation as was reasonable in the circumstances? Answer: no

b. Did the employer genuinely believe that the employee was guilty? Answer: no

c. Did the employer have in its mind reasonable grounds, based on the investigation, for holding that belief? Answer: no

d. Was the procedure fair? Answer: no 3. Was dismissal within the range of reasonable responses which a reasonable employer might have adopted? Answer: no

[157]Wrongful Dismissal 1. Was the Claimant in repudiatory breach of her contract of employment? Answer: no 2. If so, did the Respondent terminate the contract of employment in acceptance of this repudiatory breach? N/A 3. If not, what notice pay was owing to the claimant and what notice pay, if any, was paid? Not dealt with at liability hearing.

[158]Discrimination Arising from Disability – s.15 EqA Applying Pnaiser, we considered whether there was unfavourable treatment and by whom; if there was, the reason for it and whether that reason was “something” arising in consequence of the claimant’s disability. We note that any unfavourable treatment must be because of that “something” and that “something” must be in consequence of the disability. 1. Did the following thing(s) arise in consequence of the claimant’s disability?a. The claimant experienced increased stress, pressure, tiredness, and difficulty concentrating? Answer: We find that these things were a consequence of the claimant’s disability and particularly her stroke.

b. The Claimant needed to make a request for flexible working Answer: This was because of the stress, tiredness, and difficulty concentrating in consequence of her stroke. 2. Did the respondents treat the claimant unfavourably as follows:

c. suspending the claimant on 2 July 2018

d. dismissing the claimant on 21 August 2018

e. not upholding the claimant’s appeal against dismissal on 7 September 2018. Answer: These matters are all unfavorable treatment and this was admitted by the respondents. 3. Did the respondents treat the claimant unfavourably in any of those ways because the claimant experienced increased stress, pressure, tiredness and difficulty concentrating, and because she needed to make a request for flexible working? Answer: Yes. 4. Have the respondents shown that they did not know, and could not reasonably have been expected to know, that the claimant had the disabilities? Answer: The respondents admitted that they knew about the stoke shortly after it occurred and they knew about the COPD from May 2018. Overall conclusion

[159]The claimant was unfairly dismissed and wrongfully dismissed.

[160]She was discriminated against because of her difficulty concentrating, and the stress, pressure, and tiredness she experienced, and because of her request for flexible working. These were all consequences of her disabilities and particularly of her stroke.

[161]With respect to the section 13 disability and age discrimination claims, these are dismissed, as the reason for the unfavorable treatment was the “something” that arose in consequence of the claimant’s disability (tiredness, stress, pressure, difficulty concentrating and flexible working).