Miss R Slaughter v Cornwallis Care Services Ltd: 1404249/2023
JUDGMENT
The judgment of the Tribunal is as follows: Unfair Dismissal[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The respondent shall pay the claimant the following sums:(a) A basic award of £5,090.13.(b) A compensatory award of £4,648.26. Note that these are actual the sums payable to the claimant after any deductions or uplifts have been applied.[3]The Employment Protection (Recoupment of Benefits) Regulations 1996 do not apply. Judge SangerREASONS
[1]Miss Rachael Slaughter brought a claim for unfair dismissal against Cornwallis Care Services Ltd in the Employment Tribunal.[2]This is the decision of the Tribunal sitting at Bodmin Magistrates’ Court on 26th November 2024. The Background and Issues[3]The Respondent company is a care provider based in Cornwall. It operates 10 care homes, offering nursing and residential care for individuals over the age of 65. It employs between 300 and 400 staff.[4]The Claimant was employed by the Respondent at Hendra Court, a specialist dementia service, as a Health Care Assistant from 20 April 2014 to 11 April 2023.[5]The Claimant was dismissed summarily by reason of gross misconduct. The allegations related to a verbal and physical assault of a resident. Case No: 1404249/2023 10.8 Reasons – rule 60[6]The Claimant denied the allegations and asserted that she was unfairly dismissed. She asserted that a colleague, Simon Crouch, gave dishonest evidence during the disciplinary process as a vindictive reaction to the Claimant’s objections to his sexual harassment.The Evidence
[7]I reviewed the bundle dated 25 November 2024 and witness statements each dated 31 October 2024.[8]I heard evidence from Jane Eldridge, Registered Manager, for the Respondent and Rachael Slaughter, who is the Claimant.[9]I was provided with documents during the hearing, namely some email correspondence between Simon Crouch and Jim Crouch and some email correspondence said to be between Jane Eldridge and the relative of another resident. I also considered those.Findings of fact
[10]The following facts were found on the balance of probabilities.[11]The Respondent company is a care provider, based in Cornwall. The Claimant was employed by the Respondent as a Health Care Assistant from 20th April 2014 to 11th April 2023.[12]She was dismissed by reason of gross misconduct, further to an allegation that she had assaulted a resident.[13]On 17th February 2023 it was alleged that the Claimant assaulted a resident by using physical force to remove the resident from the conservatory to her room and, within earshot of the resident, called her a “fucking bitch” and, out of earshot, stated “if she hits me again I will fucking kill her”. Her colleague, Simon Crouch (known alternatively as Simon Pinnington), stated that he heard the Claimant saying to the resident “how fucking dare you hit me?” and subsequently saw the Claimant with her arms under the armpits of the resident, pushing her through the lounge towards the corridor. He stated that he asked the Claimant to stop and that, once the resident was in her room, the Claimant called her a “fucking bitch” and later said “that’s the only way she will fucking learn”.[14]In evidence, the Claimant cited certain inconsistencies in Simon Crouch’s evidence but I did not consider these to be significant.[15]When asked by Jane Eldridge, who investigated the matter, why he did not physically intervene, Mr Crouch reported that he was concerned for the resident’s safety.[16]Another witness to the disciplinary hearing, Belinda Collings, stated that she was giving out tea at the counter when she heard the Claimant shouting “how dare you hit me?” She stated that she saw the Claimant with her arms under the resident’s armpits using her weight to push the resident through the lounge, with both the resident and Simon Crouch asking her to stop. Case No: 1404249/2023 10.8 Reasons – rule 60[17]There was a third witness to the incident: Michael Knock. He gave a brief statement, which was followed by an investigatory interview. His evidence does not support that of Mr Crouch and Ms Collings. He described the Claimant escorting the resident through the lounge.[18]Initially, Mr Knock was reluctant to involved, but he later contributed to the investigation by way of email correspondence with Jim Crouch, the consultant who heard the appeal hearing. In that email his evidence was that the Claimant had led the resident through the door, holding her left arm, and escorted her through the lounge. She was joined by Simon who took the resident’s other arm to assist.[19]The Claimant’s account, in evidence and throughout the disciplinary process, is that, having been struck by the resident, she escorted her through the lounge, assisted by Mr Crouch. She maintained that the manner in which she was said to have moved the resident (with her arms through the armpits and up in front of her shoulders) is impossible. However there was no clear account given to the tribunal of the precise manner in which she was said to be holding the resident.[20]The Respondent was not able to set out exactly what the allegation was in terms of the physical assault. I could not, therefore, find whether the hold was physically impossible without understanding exactly what was alleged. Given the height discrepancy set out by the Claimant, I am of the view that it is unlikely to have been an effective way of moving a resident from A to B, along a route that it was agreed took approximately one minute to walk and which involved passing through a locked door. However I could make no formal finding, on the basis that the Respondent’s case was unclear as to the exact nature of the alleged assault.[21]The Claimant accepted, during the disciplinary proceedings and in evidence, that she had said “if she hits me again I will fucking kill her”. She maintained that this was not in earshot of the resident.[22]After the incident (on 8th March) the Claimant raised a grievance against Mr Crouch with regard to allegations of sexual harassment. At the time of the incident, she had not yet done so. In her pleadings she alluded to a feud between herself and Mr Crouch but in evidence was not able to elaborate on what that was about, simply saying that she could not remember.[23]On the basis of the Claimant’s oral evidence and the evidence of the grievance that was raised on 8th March, I found that there was a falling out between the Claimant and Mr Crouch, though I did not hear evidence on the reason for that falling out. This was supported by Jane Eldridge in her oralevidence.
[24]The evidence on whether the alleged incident occurred was inconclusive.[25]There was no clear description of the hold that was alleged and the Claimant was adamant that, as she pictured it, it would have been impossible. Case No: 1404249/2023 10.8 Reasons – rule 60[26]Even taking Mr Crouch’s evidence out of the equation, as was suggested by the Respondent’s representative in closing submissions, we are left with two statements, aside from the Claimant’s, which directly contradict one another.[27]In relation to the incident on 17th February 2023, I could not be satisfied, on the balance of probabilities, that the incident occurred as alleged. I found, through her own admission, that the Claimant swore but I am not satisfied that that was within earshot of the resident and I am not satisfied that she assaulted her. The evidence on both points was conflicting. The investigation[28]The Claimant was suspended and the Respondent carried out an investigation.[29]On 18th February 2023 the matter was reported to the police. The police eventually determined that they would take no further action in respect of the incident. This has no bearing on my decision because the standard of proof for a criminal prosecution is a higher threshold than the decision I have to make today.[30]On 27th February 2023 an investigatory meeting was held. The Claimant attended, accompanied by Kristina Warrick. The meeting was chaired by Jane Eldridge and concluded with a decision to seek advice from the Respondent’s HR consultants. The notes of the meeting are brief but the initial account from the Claimant was that she had assisted the resident to her room with the support of Simon Crouch.[31]On 8th March 23 the Claimant raised a grievance in relation to Mr Crouch. She complained of sexual harassment and a grievance meeting was held on 15th March 2023. The grievance was investigated and eventually dismissed by the Respondent on the basis that there was no eyewitness evidence of the behaviour complained of. Later, in her witness statement, Ms Eldridge confirmed that a further reason was that Mr Crouch was homosexual and shortly due to marry his long-term partner. She questioned the timing of the raising of the allegation in light of the disciplinary proceedings.[32]On 28th March an investigatory meeting with Michael Nock was held. His account was not supportive of the allegation and the Claimant was later told that his statement was not relevant. This was described by Ms Eldridge, in her evidence to the tribunal, as an error on her part.[33]In evidence, Ms Eldridge was clear that her involvement in the process ended at that stage and that the papers were sent to HR who carried the process forward. No witness gave further evidence as to the decision-making process. Disciplinary hearing[34]There was some dispute about the paperwork that was provided to the Claimant in order to help her prepare for the disciplinary hearing.[35]The Claimant stated that she had requested paperwork prior to the disciplinary hearing but in evidence she was not clear what this was and the Case No: 1404249/2023 10.8 Reasons – rule 60 Respondent’s witness was not party to the request. The bundle did not assist. The Respondent contended that the relevant documents were all provided to the Claimant with the invitation to the disciplinary hearing. In evidence the Claimant conceded that she had the documentation set out in the letter of 3rd April 2023 but it was more likely than not that she was not provided with the statements of Michael Nock or Jenny Thomson at that stage.[36]A disciplinary hearing was held on 6th April 2023. It was heard by Ms Zoe Morgan. The outcome was that the Claimant was dismissed without notice for gross misconduct.[37]The allegation was that the Claimant had used unsanctioned physical force to remove a resident from the conservatory to their room and that she had called the resident a “fucking bitch”. The Respondent’s position was that these actions amounted to a breach of the company’s Safeguarding Residents from Abuse policy.[38]The Claimant again set out her account of the incident in the meeting. It was consistent with the earlier account.[39]References were provided to Ms Morgan and the Claimant made allegations relating to Simon Crouch falsifying residents’ records in the care home.[40]There is no evidence that those allegations were investigated.[41]The outcome of the disciplinary hearing was dismissal for gross misconduct.[42]The decision was made by Zoe Morgan.[43]The Respondent did not provide a witness to give evidence about the decision-making process. There was no way to assess, therefore, how much reliance was placed on the statements of the individual witnesses and how much weight was given to the documents presented in mitigation, for example the character references.[44]There was no evidence before the Tribunal as to whether other sanctions were considered and why the decision was to dismiss was made. Appeal hearing[45]An appeal hearing was conducted by Jim Crouch, an external HR consultant, on 19th May 2023.[46]There was discussion about the statement provided by Mr Nock: the Claimant reported that his statement to the police had taken an hour. She invited the consultant to ask to see the statement of Mr Nock. The consultant did follow this up by email and received responses from Mr Nock which were supportive of the Claimant’s account.[47]The Claimant stated again that the manner of supporting the resident described would not have been physically possible owing to their respective heights and the fact she would not have been able to see where she was going. Case No: 1404249/2023 10.8 Reasons – rule 60[48]The Claimant again alleged that Simon Crouch was dishonest: he had previously falsified information on residents’ care notes.[49]The Claimant was asked, in turn, about the points she raised in her disciplinary hearing. She said that she and Simon walked the resident up to her room, which was a one-minute walk through a key coded door. The resident was flinging her arms about which made this difficult and required two care assistants.[50]The Claimant admitted that she made a remark out of frustration. She confirmed the remark made was “if she hits me again I will fucking kill her” and that this was said out of earshot of the resident.[51]The outcome of the appeal hearing was that the original decision was upheld. The Claimant was dismissed for gross misconduct.[52]The decision was made by Stuart Clarkson. Submissions of the parties[53]The Respondent submitted that a comprehensive investigation and disciplinary process was followed and that the dismissal was fair. In closing, the Respondent’s representative asked me to consider that, if the process was not fair, the Claimant would have been dismissed in any event and/or the Claimant engaged in culpable conduct.[54]The Claimant submits that a fair process was not followed and that she was not fairly dismissed. She focused on inconsistencies within the evidence which, for the most part, I did not find to be persuasive.Conclusions
[55]The issues were determined as follows. Was the Claimant dismissed?[56]The Respondent accepts that it dismissed the Claimant, and it asserts that it was for a reason related to conduct, which is a potentially fair reason for dismissal under s. 98 (2) of the Employment Rights Act 1996.[57]I found that the Claimant was dismissed. Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances?[58]I found that the Respondent had a genuine belief in the Claimant’s misconduct. The investigation was, for the most part, reasonable and appears to have been well-resourced. The Claimant’s allegations of sexual harassment in regard to Simon Crouch had been explored, by way of a grievance, and not upheld. Case No: 1404249/2023 10.8 Reasons – rule 60[59]It is not for the Tribunal to step into the shoes of the employer but to determine whether the employer has considered all the relevant evidence; i.e. undertaken a reasonable investigation.[60]I found that the Respondent failed to investigate an allegation that the Claimant’s accuser had a history of acting dishonestly. The allegation was raised at the earliest opportunity and was maintained. This was fundamental where the allegation against the Claimant was so serious and its potential outcome had such serious consequences.[61]It is not for me to determine whether those allegations had merit. However, given the severity of the allegation levelled against the Claimant, a reasonable employer ought to have investigated those allegations of dishonesty by a principle witness. This is perhaps even more important when the evidence relating to the incident on 17th February 2023 was inconclusive. Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?[62]Dismissal was therefore not a reasonable sanction in this case, because the decision was based upon a flawed investigation. The investigation process having been flawed, it was not reasonable for the Respondent to believe that the Claimant had committed gross misconduct. Did the Respondent adopt a fair procedure?[63]The Claimant has asserted that certain documents were not provided to her in the initial stages of the investigation.[64]In evidence she was not able to say which documents she believed to be missing. The only specified documents were the statements of Jenny Thomas and Michael Nock. It is evident from the invitation to a disciplinary hearing that they were not provided to her initially. However, both documents were made available to the Claimant by the time of the appeal and they were discussed in the appeal hearing. I am satisfied that that element of the procedure was fair, as any initial errors were corrected at appeal.[65]The Claimant asserted that Zoe Morgan, the dismissing manager, had made up her mind prior to the disciplinary meeting. I saw no evidence to support this assertion and, in any event, the final decision was made by a different manager, further to an independent appeal process which was overseen by an external consultant.[66]The Claimant asserted that she was informed that she was not entitled to receive the resident’s daily notes or an incident report relating to the matter. While this would have no doubt assisted her to prepare her case and may have been best practice, I did not find this to be in breach of the ACAS code of conduct. The documents were not relied upon by the Respondent in making its decision.[67]Considering the ACAS code of conduct, I found that paragraph 9, which says that it would normally be appropriate to provide copies of any written Case No: 1404249/2023 10.8 Reasons – rule 60 evidence, was not complied with at the disciplinary hearing but this was later rectified at the point of appeal.[68]There was therefore no substantive breach by either party. If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when?[69]I heard no evidence on this point. I was not in a position, therefore, to determine whether it is more likely than not that the Claimant would have been dismissed in any event, had a fair procedure been followed.[70]There is therefore no “Polkey” reduction. If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct? This requires the Respondent to prove, on the balance of probabilities, that the Claimant actually committed the misconduct alleged.[71]I have not been able to establish, on the balance of probabilities, that there was culpable conduct on the 17th February 2023. The questions which overhang Mr Crouch’s evidence and the resulting accounts which directly conflict with one another are inconclusive. Remedy Basic awardRemedy
[72]Neither party came to the hearing with evidence of the Claimant’s gross weekly pay when she was employed by the Respondent. The Claimant did not have access to her payslips and the Respondent’s representative therefore obtained evidence of her pay. It was agreed between the parties that the Claimant’s gross weekly pay was £442.62.[73]The Claimant had worked for the Respondent from 20th April 2014 until 11th April 2023, a period of 8 years and 11 months. The Claimant turned 42 on 22 Jan 2015. The Claimant had therefore completed:a. 1 full year’s service when she was aged between 22 and 41 andb. 7 full years’ service when she was aged 42 and over.[74]The Claimant is entitled to compensation using the following formula: 1 week’s pay for each year of service between ages 22 and 41 1.5 weeks’ pay for each year of service over age 41[75]She is therefore entitled to a basic award comprising 11.5 weeks’ pay, totalling £5090.13 (gross).[76]My findings above were that I could not be satisfied, on the balance of probabilities, that the Claimant had acted in the manner alleged. That being the case, there was no basis on which I could find that she would have been Case No: 1404249/2023 10.8 Reasons – rule 60 dismissed had a fair procedure been followed. There was therefore no reduction made for contributory conduct.[77]The total basic award was £5,090.13 (gross). Compensatory award[78]The Claimant was awarded the following:a. The Claimant had sought employment immediately. She gave evidence of a number of temporary jobs that she has held since leaving the employment of the Respondent. It will take her some time to build up her statutory right not to be dismissed and I therefore awarded her a sum to compensate her for her loss of statutory rights: £500.b. The Claimant gave evidence that she had incurred £120 in petrol costs driving to the Job Centre and to other locations looking for work five times per week between her dismissal on 11th April and starting employment on 13th May 2023. I awarded her that sum to compensate her for expenses incurred in seeking employment: £120.c. I calculated the Claimant’s net loss of future earnings as 85 weeks’ pay. This was from the date of dismissal, 11th April 2023, to the date of the hearing. With the assistance of the Respondent’s representative, it was agreed that the Claimant’s net pay could be calculated at an average of £359.70 per week. Loss of future earnings (85 x £359.70): £30,574.50.d. The Respondent’s Representative and the Claimant agreed that the pension contributions had been paid at a rate of 3% I calculated the Claimant’s loss of pension contributions to be £1,128.68.e. There were no future losses as the Claimant had been in employment since 13th May 2023. She provided evidence of her earnings in that employment, which were £27,674.92.[79]My findings of fact having been that there were no breaches of the ACAS code of conduct by either party, there were no adjustments to be made.[80]The Respondent’s representative invited me to find that, had a fair process been followed, the Claimant would have been dismissed in any event. I was invited to reduce the amount of compensation payable accordingly.[81]A fair procedure would have involved the investigation of the allegation that the Mr Crouch had a history of acting dishonestly. No evidence on that point had been put before the Tribunal and so I was not in a position to make an assessment of the likelihood of the Claimant being dismissed in any event. There was therefore no reduction in the amount of compensation awarded under the “Polkey” principles. Case No: 1404249/2023 10.8 Reasons – rule 60[82]On the balance of probabilities, I was not able to establish that the Claimant had engaged in blameworthy conduct such that her award ought to be reduced.[83]The Claimant did not claim benefits during the period of her unemployment.[84]The calculation for the compensatory award was as follows: Loss of statutory rights £500 Expenses in seeking employment £120 Loss of earnings (net) £30,574.50 Loss of benefits (pension contributions) £1,128.68 Less pay earnt in employment (net) -£27,674.92 TOTAL £4,648.26[85]The total compensatory award was therefore £4,648.26.