Mrs R M Idahosa v Wellchime Ltd T/a April Court Care Home: 1602945/2023
EMPLOYMENT TRIBUNALS
Case No 1602945/2023
Between
Mrs R M IdahosaClaimantWellchime Ltd t/a April Court Care HomeRespondent
Before
Employment Judge WebbDate 22 April 2025
REASONS
[1]The claimant, Mrs Idahosa, began working for the respondent on 14 January 2019. She was employed as a Care Practitioner until 01 September 2023, when she was dismissed.[2]The claim is about the circumstances of Mrs Idahosa’s dismissal. She says that because of her pregnancy and maternity leave she was not invited to training or provided with a return to work support plan and this was discrimination. She also says that during the dismissal process she was subjected to direct race discrimination. She complains that her dismissal was unfair.[3]The respondent says that Mrs Idahosa was dismissed because of her conduct or some other substantial reason, that she was not discriminated against because of her maternity or pregnancy. They deny that any differential treatment during the dismissal process was because of Mrs Idahosa’s race. Claims and Issues Case No: 1602945/2023[4]The Claimant has bought claims of unfair dismissal, pregnancy and maternity discrimination and direction race discrimination.[5]The issues to be decided in the hearing were initially identified by Judge Lloyd-Lawrie at the Case Management Hearing on 24 May 2024 and listed in her order of 29 May 2024 at pages 48-61 of the bundle provided to the Tribunal. They are as follows: Unfair dismissal – 94 Employment Rights Act 1996[6]Was the Claimant dismissed? The Respondent admits the dismissal.[7]If the Claimant was dismissed, what was the reason or principal reason for dismissal? The Respondent asserts misconduct.[8]Was it a potentially fair reason?[9]Did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the Claimant?[10]The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.[11]What was the reason or principal reason for dismissal? The Respondent says the reason was conduct or some other substantial reason. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.[12]If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:a. there were reasonable grounds for that belief;b. at the time the belief was formed the Respondent had carried out a reasonable investigation;c. the Respondent otherwise acted in a procedurally fair manner;d. dismissal was within the range of reasonable responses. Direct race discrimination – 13 Equality Act 2010[13]The Claimant is claiming race discrimination. She identifies as Black African.[14]Did the Respondent do the following things: Case No: 1602945/2023a. Call the police before the investigation and told the Claimant that they had done so in order to intimidate her;b. During the course of the investigation meeting, a police officer knocked on the door to reaffirm the intimidation.[15]Was that less favourable treatment?a. The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s.b. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated.c. The Claimant has not named anyone in particular who they say were treated better than they were, saying other staff generally.[16]If so, was it because of race?[17]Did the Respondent’s treatment amount to a detriment? Pregnancy and maternity discrimination – 18 Equality Act 2010[18]Did the Respondent treat the Claimant unfavourably by doing the following things:a. During the course of the 1 year maternity leave, failing to invite her to attend the manual handling training?b. By failing to implement a return-to-work support plan for the Claimant after her maternity leave?[19]Was the unfavourable treatment because had exercised or sought to exercise, the right to ordinary or additional maternity leave?
Remedy.
[20]The issues identified by Judge Lloyd-Lawrie in respect to remedy were only relevant if we were to find in favour of the appellant. Jurisdiction for the pregnancy discrimination claim[21]Mr Willams at the conclusion of the hearing raised another issue relating to jurisdiction. This had not been identified in the list prepared by Judge LloydLawrie. Although this issue was raised extremely late, as it related to the jurisdiction of the Tribunal to deal with discrimination claims, it was a point that was legitimately raised. The issues identified were as follows:[22]The dates of the ACAS early conciliation process are 20 September 2023 to 31 October 2023. Was the Claim From presented within 3 months (accounting to the effects the ACAS early conciliation) of any act of discrimination? Case No: 1602945/2023[23]If no, does the Claimant prove there was conduct extending over a period, which it to be treated as done at the end of the period? Is such conduct accordingly in time?[24]Was any other complaint presented within such period as the Employment Tribunal considered just and equitable?
The Hearing
[25]The Claimant was represented by her husband, Mr Idahosa. The respondent was represented by Mr Williams.
Preliminary matters
[26]At the start of the hearing Mr Williams renewed the application, made in the ET3, for there to be an order preventing the identification of the residents of the care home who are mentioned in the case.[27]Mr Idahosa indicated the claimant had no objection to such an order being made.[28]In light of the submissions and the circumstances in the case the application for that order was granted and the residents will be identified by the initials VD and MW where required in this decision and in the public record related to this case.[29]In making that order we took account of the requirements for open justice but concluded that as the vulnerable individuals were not parties to the proceedings and that their identities were not key to the matters in dispute that it was appropriate for an order preventing their identification to be made. Evidence and Submissions[30]Mrs Idahosa gave evidence before us: she confirmed her statement and was cross examined by Mr Williams. During the cross examination we were shown the relevant CCTV footage of the 12 August 2023.[31]For the respondent we heard evidence from Sarah Bennett, the deputy manager, Lynne Cullen, the head of region for the respondent and the investigating officer, Ramesh Patel the HR manager who made the disciplinary decision, and Ellie Kelleher, another HR manager who made the appeal decision. Each of the witnesses confirmed their statement and were cross examined by Mr Idahosa.[32]During the course of the hearing Mr Williams offered to provide us with a zoomed in copy of the CCTV footage. We declined to watch the footage in that format as it was not clear to us that those making decisions in relation to the dismissal would have had the same zoomed in footage and therefore, we considered it was not relevant to the decision we needed to make.[33]After we had heard from all the witnesses Mr Williams made submissions on behalf of the respondent. He also relied on the written arguments that he provided to the tribunal. Case No: 1602945/2023[34]We provided Mr Idahosa some time to consider the arguments before he spoke on behalf of his wife, setting out her view of the case and the reasons why we should find in her favour. He also provided written arguments.[35]The documentary evidence before us consisted of a 194 page bundle. The numbering between the PDF bundle and the paper bundle differed, but this did not cause any difficulties during the proceedings. In this decision page references will be to the PDF bundle.[36]We also had access to details of jobs that Mrs Idahosa has applied for since being dismissed.[37]We thank Mr Williams for his help in this case and in particular thank Mr Idahosa who undertook the task of representing his wife with skill and care as someone without a legal background or experience in tribunal proceedings.
Findings of Fact
[38]We have not set out every point or piece of evidence in our findings, only those that are most important to our decision. In making our findings we have considered all the evidence and arguments put forward by the parties. References to page numbers are to the agreed bundle of documents unless stated otherwise. 39.39. BURDEN and standad of proof including the discriminaiotn standard In the unfair dismissal claim the burden is on the respondent to show the reason for dismissal and that it was a potentially fair one. The burden is on the claimant to show that a potentially unfair dismissal was unfair[40]In the discrimination claims the burden of proof is on claimant. However if there are facts from which the Tribunal could decide that an act of discrimination has taken place, the burden shifts to the respondent to show a non-discriminatory explanation for the act.[41]Wherever the burden lies, the standard of proof is the balance of probabilities.[42]Many of the facts in this case are not in dispute. Where we have had to resolve any conflict of evidence, we indicate how we have done so at the material point.[43]The relevant facts are as follows.[44]Mrs Idahosa began working for the respondent on 14 January 2019. She was employed as a Care Practitioner until 01 September 2023 when she was dismissed.[45]Mrs Idahosa was provided with manual handling passport training in February 2019 and attended yearly refresher training until June 2022 when she went on maternity leave. Case No: 1602945/2023[46]During her first period of maternity leave she was reminded by Lynne Cullan to complete online training before returning to work in an email dated 22 March 2021 (page 121).[47]On 25 March 2021 Sarah Bennett approved Mrs Idahosa’s attendance at a manual handling practical passport course that was due to take place on 23 April 2021 (page 122).[48]Both these events took place after Mrs Idahosa had confirmed that she was due to return to work on 5 April 2021 in an email dated 12 March 2021 (page 119).[49]In June 2022 Mrs Idahosa began a second period of maternity leave and returned to her position on 13 June 2023.[50]During her second period of maternity leave Mrs Idahosa was not invited to take part in any manual handling training.[51]Following her return to work, Mrs Idahosa had a supervision meeting with Alison Williams. That was a short meeting that took place at the end of her shift on 08 July 2023. There was a dispute between the parties about the contents of the supervision form (page 126). We have made no findings about that dispute as it is not relevant to the decision that we have made.[52]No return to work plan was put in place, Mrs Idahosa did not ask for one to be put in place or state at any point that she required additional training.[53]On 12 August 2023 Mrs Idahosa was working at the care home. During her shift she took part in a number of transfers involving VD, from bed to wheelchair and from wheelchair to lounge chair and toilet. During one of these transfers that took place at 11:08 VD is seen to stumble or fall. In this transfer the claimant was transferring VD alongside Nicola Snell a senior care practitioner.[54]On 15 August Sarah Bennett received an email from a family member of a resident informing her that VD had bruises. She met the family members who also mentioned there had been an argument between members of staff on the previous weekend.[55]That prompted Sarah Bennet to view the CCTV footage to see who had been arguing.[56]After viewing the CCTV footage with Lynne Cullen and observing an unsafe transfer of a resident the police were called and safeguarding contacted.[57]There were differences in the evidence regarding who contacted safeguarding, the email to them (page 128) was sent by Rebecca John, the registered manager for the care home.[58]When this was put to Sarah Bennett by Mr Idahosa, she explained that her witness statement must be incorrect.[59]When the same point was put to Lynne Cullen, she explained that the procedure was to call safeguarding and then follow up with an email. We Case No: 1602945/2023 accept the evidence of Mrs Cullen regarding this. It was clear, detailed and plausible. We find that initial contact with safeguarding was made by telephone and that it was then formally raised in the email sent by Rebbeca John later in the day.[60]The consistent evidence before us was that it was standard practice to contact the police and safeguarding about matters like the unsafe transfer and we find that this was the case.[61]Following the viewing of the CCTV Mrs Idahosa was invited to an investigation meeting that day.[62]We accept that before the recording of the meeting started Mrs Idahosa was told that the police had been called, that was the evidence of both Mrs Idahosa and Mrs Cullen.[63]During that meeting Mrs Idahosa was asked questions about 12 August and the transfers of VD.[64]During the investigation meeting Mrs Idahosa accepted that she used transfer techniques on VD that were not appropriate ( page 135 toward the bottom of the page). She also said that during the transfer VD did not stumble and that she would have reported it had VD done so (page 139).[65]It is accepted that during the meeting the police knocked the door. The evidence of Mrs Cullen was that the police do not usually come to the home so quickly: she was not expecting them to come and was not expecting them to knock the door of the meeting room. Her clear and consistent evidence, that we accept was that it was not a planned event.[66]We find that the purpose of the knock on the door was for the police to discuss the report with the managers of the home, it was not organised by the managers.[67]In her witness statement Mrs Idahosa described how stressed and intimidated she was by the process. We accept that having not gone through the process before and having the police knock on the door of the room during the investigation would have heightened the understandable worries she had and would have felt intimidating at the time.[68]At the end of the investigation meeting Mrs Cullen suspended Mrs Idahosa. She considered that there was a case to answer and passed the matter on to the disciplinary officer Mr Patel.[69]A letter was sent to Mrs Idahosa by Mr Patel on 21 August inviting her to a disciplinary meeting on 24 August. That letter (page 147), set out the allegation that was to be discussed and provided the notes of the investigation meeting. It confirmed that she could bring a fellow employee with her should she wish. It confirmed that the allegations could amount to serious misconduct and that her employment could be terminated.[70]The letter said that she has a copy of the disciplinary rules and procedure. Mrs Idahosa disputes that she had access to those documents. Case No: 1602945/2023[71]The evidence of Mr Patel and Ms Kelleher was that the disciplinary procedures were contained in the employee handbook and on the ELFY system, to which the claimant had access. We note that the tribunal were not provided with a full version of the handbook, nor a copy of the disciplinary policy in our hearing bundle.[72]However, we accept the consistent and clear evidence of Mr Patel and Ms Kelleher that the claimant was able to access those documents by logging on to ELFY. We also find the Mrs Idahosa had logged on to the ELFY system in the past to complete training courses and access information. That is demonstrated by the ELFY logs (pages 186-188).[73]The disciplinary meeting took place on 24 August, the notes of the meeting show that Mrs Idahosa was happy to continue with the meeting in the absence of a fellow employee. It shows that she was given a full opportunity to explain what had happened on 12 August with the transfers.[74]During that interview she confirmed that she had not read VD’s care plan (page 156), accepted that VD could have broken her neck and confirmed that it was not a safe transfer (page 160). She confirmed using the same technique while transferring VD back and forth to the toilet (page 163-164).[75]We accept that Mr Patel had access to the photographs of VD. We as a Tribunal found thee photographs distressing, as did all the parties and witnesses in these proceedings as was clear from their reaction when looking at the photographs.[76]We also find that Mrs Idahosa was not provided with a copy of the photographs during the disciplinary process. However, we find that the focus of Mr Patel during the disciplinary process was not on the photographs, but instead on the actions of the claimant during the transfers of VD.[77]In a letter dated 1 September 2023 Mr Patel provided the decision of the disciplinary process, that Mrs Idahosa was to be dismissed for gross misconduct (page 176).[78]The letter records that the reasons relate to the failure to consider VD’s care plan and failing to transfer her safely. It records that she was up to date with her manual handling training.[79]That same day Mrs Idahosa submitted an appeal against the decision by email and received a response from Ms Kelleher inviting her to attend an appeal meeting on 13 September (page 178).[80]The notes of that appeal meeting show that Mrs Idahosa regretted her actions but took responsibility for them (page 180).[81]On 15 September Ms Kelleher sent a final decision dealing with the points raised by Mrs Idahosa and upholding the decision.[82]Mrs Idahosa entered into early conciliation on 20th September and received an ACAS certificate on 31 October 2023. Her claim was submitted to the Tribunal on 28 November 2023. Case No: 1602945/2023 Law Unfair dismissal claim
Law
[83]The right not to be unfairly dismissed is contained in section 94 of the Employment Rights Act 1996: “(1) An employee has the right not to be unfairly dismissed by his employer.”[84]The burden is on the respondent to show that the reason for dismissal is a fair one (section 98(1) ERA 1996).[85]Even where a dismissal is for a fair reason, it may still be an unfair dismissal if it was, depending on the circumstances, unreasonable for the employer to treat it as a reason for dismissing the employee. (section 98(4) ERA 1996). Direct Race Discrimination[86]Section 13 of the Equality Act 2010 provides that: “(1) A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[87]Section 9 of that Act lists race as a protected characteristic.[88]If a claimant satisfies the tribunal that there are facts on the face of their claim form which a tribunal could decide the ahs been discrimination, the burden shifts to the respondent to show that the reason for any different treatment was not discrimination (section 136 EA 2010). Pregnancy and maternity discrimination[89]Section 18 of the Equality Act 2010 provides that: “(2) A person(a) (A) discriminates against a woman if, in or after the protected period in relation to a pregnancy of hers, A treats her unfavourably— (a) because of the pregnancy, or(b) because of illness suffered by her [in that protected period as a result of the pregnancy. (3) A person (A) discriminates against a woman if A treats her unfavourably because she is on compulsory maternity leave or on equivalent compulsory maternity leave. (4)A person (A) discriminates against a woman if A treats her unfavourably because she is exercising or seeking to exercise, or has exercised or sought to exercise, the right to ordinary or additional maternity leave or a right to equivalent maternity leave.” Case No: 1602945/2023 Jurisdiction[90]The Tribunal is only able to deal with claims that have been submitted in time, or where the time to submit a claim has been extended. In relation to discrimination claims section 123(1) of the Equality Act 2010 sets out that claim may not be bought to the Tribunal after the end of: “(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.”[91]Where there is continuing conduct over a period, it is treated as if it was done at the end of the period (section 123(3) EA 2010).
Conclusions
[92]We have considered the facts as we have set out above and the submissions of the parties in reaching our conclusions on the issues before us. Jurisdiction in the pregnancy discrimination claim.[93]In relation to the failure to provide a return to work support plan on return from maternity leave we find that was a continuing act that only ended upon the suspension of the claimant, and we find that the claim in relation to that particular point was made in time.[94]With regard the failure to invite the claimant to training during her maternity leave, we accept that action must have ended at the conclusion of her maternity leave on 13 June 2023. The claim should have been submitted, in the absence of any early conciliation by 12 September 2023, that is therefore out of time.[95]We must therefore consider if it is just an equitable to extend time for submitting that claim to 28 November 2023. In his submission Mr Idahosa confirmed that time had been discussed at the preliminary hearing and it had been explained that the reason for the delay was that the disciplinary and appeal process was being carried out.[96]It is recorded in paragraph 61 of the case management order of 24th May 2024 that the respondent was not advancing any time points in relation to the claim. that indicates that there was a concession by the respondent that it was just and equitable for time to be extended in the circumstances described by Mr Idahosa. We find in the circumstances of the case as described by Mr Idahosa that it is just an equitable to extend time for the claim to be submitted to the tribunal. Pregnancy and Maternity Discrimination[97]To find that there has been maternity discrimination we must be satisfied there has been unfavourable treatment. Unfavourable treatment is not defined but we are of the view that it must be treatment that causes a claimant disadvantage. Case No: 1602945/2023[98]It is not clear why the claimant says the failure to offer her training during maternity leave caused her a disadvantage. If the argument is that if she had been offered training she would have taken it up and that would have prevented the unsafe transfer, we find that is not the case. The CCTV evidence demonstrates that Mrs Idahosa was able to make safe transfers of the residents including VD on at least three occasions, we find that a lack of being offered training did not result in the unsafe transfer of VD.[99]We are also satisfied that the absence of a return to work support plan did not cause a disadvantage for the same reasons. We note that Nicola Snell was also involved with the unsafe transfers. She was a more senior care worker. It appears to us that the implementation of a return to work care plan would not have prevented the events from happening and therefore that failure did not put the claimant at a disadvantage.[100]Because of those findings we find that the claimant was not discriminated against because of her pregnancy or maternity leave. Race discrimination[101]We accept that the police were called before the start of the investigation meeting, but we find that was standard protocol. It was not designed to intimidate the claimant. However, we accept that the process of the investigation meeting was stressful and intimidating for the claimant, in particular in light of her immigration status at the time.[102]However, we find the claimant was not treated in a way that was different to any other person who did not share her race, the employer we find was following their standard protocol so there was no less favourable treatment.[103]In respect of knock at the door, we accept that happened and it would have caused increased stress for the claimant during the investigation meeting. We accept it may have made her feel intimidated. We accept that it was treatment that was different to other employees of different races and that she was treated less favourably in that respect.[104]However, we have accepted that it was not a preplanned event and the managers were surprised by the quick response from the Police. We find the knock on the door was not because of the claimant’s race. We find that had Nicola Snell or another employee been in that the room the police would have still knocked.[105]For these reasons we find that the claimant was not discriminated against on the basis of her race. Unfair dismissal[106]The claimant says the process was unfair because the respondent was already looking for guilt before the investigation started. The respondent had a video showing an unsafe lifting technique being used by Mrs Idahosa. The notes of the investigation meeting and disciplinary hearing showed that the respondent was providing an opportunity for the claimant to give a full explanation of what happened, it was not a case where the respondent pre- Case No: 1602945/2023 judged the matter. We accept there was strong evidence of unsafe lifting technique but that does not mean that the respondent pre-judged the disciplinary process.[107]The claimant also suggests that the investigation was rushed and did not follow the ACAS rules. We find the investigation was not rushed in the circumstances. The respondent, we find, was right in the circumstances to conclude that the investigation should be carried out as quickly as possible. While the ACAS guidance quoted by Mr Idahosa suggest that before an investigation a written invitation should be provided those are the rules and not the code of practice. A failure to follow the rules in an otherwise fair process does not make the process unfair. We are satisfied that the investigation complied with the ACAS code of practice and the swiftness of the investigation did not cause the process to be unfair.[108]In in his written submissions Mr Idahosa on behalf of the claimant argues that by withholding the photos during the investigation and the disciplinary hearing that the respondent created an unfair process. We are of the view that the investigation and the disciplinary procedures concentrated on the unsafe transfer. As we have said the photos are upsetting but that was not the reason for the investigation. It was prompted by the complaint by the family member about an argument. It was that which resulted in the management looking at CCTV footage and identifying the use of unsafe transfer techniques by the claimant and Nicola Snell. It is clear to us that the driving force was the unsafe techniques and not the bruises shown in the photographs and therefore that they were not shown to the claimant during the process does not make it unfair.[109]Mr Idahosa also argued that the process was unfair because Mrs Idahosa did not have access to the disciplinary and grievance policies. However, we have found that she did have access to those policies via the ELFY system. She had logged on to that app on numerous occasions and could have accessed the policies there or requested them from the respondent at any point. We find that the process was not unfair because of a lack of access to the relevant policies.[110]We are satisfied that the respondent dismissed the claimant for gross misconduct, that they had reasonable grounds for that belief because during the investigation and disciplinary process the claimant accepted that she used unsafe transfer techniques and had not read the relevant care plan.[111]We are satisfied that that belief was formed following a reasonable investigation and we are satisfied that the respondent acted in a procedurally fair manner.[112]In her evidence Mrs Idahosa said that she had expected there to be a warning and additional training rather than a dismissal. When looking at the result of the disciplinary process we remind ourselves that the question we ask is not if this tribunal would have made a different decision but whether the decision was one within the range of reasonable responses.[113]It was emphasised by the respondent that this was a serious matter and we agree. While dismissal is at the upper end of responses to such misconduct it was an option that was reasonably open to the respondent. Case No: 1602945/2023[114]For those reasons we find that the claimant was not unfairly dismissed.[115]For those reasons we dismiss all the claims. _____________________________ Employment Judge Webb 13 July 2025
Conclusions
[1]The respondent’s application for costs is refused.[2]The conditions required for the Tribunal to make a costs order were not present in the case and in any event, having considered all the circumstances, the Tribunal would not have exercised its discretion to make a costs order.