Mrs L Tierney v The Disability Trust T/a Brainkind: 1804160/2024
JUDGMENT
[1]The claimant’s claim of unfair dismissal is well founded and succeeds.[2]The claimant’s claim for breach of contract is not well founded and is dismissed.REASONS
[1]The claimant was employed by the respondent as a service manager and registered manager at its residential care home called Victoria House caring for people with disabilities arising from brain injury or similar problems. Her employment started on 20 May 2019.[2]The claimant had management responsibilities for a team of staff delegated through her assistant manager and team leaders. The claimant’s contract of employment provided for her to receive four weeks’ notice of termination of employment for the first five years of her employment, and then one week per year from five years onwards subject to the statutory maximum.[3]The claimant was, in 2023, on maternity leave and she returned to work in July 2023. In her absence the service was managed by Deborah Alcock. In midAugust 2023 a new regional manager, Mr Ian Aldred, was appointed to whom the claimant reported. 10.5 Reserved judgment with reasons – rule 61 1 March 2017[4]At some point in August some allegations were made about the claimant. The particular allegation at the time related to some staffing relationships. On 21 November 2023 the claimant was suspended on the basis of six allegations of misconduct. The claimant was required to respond to those allegations by 23 November 2023. Those allegations were in the main vague and unparticularised. The claimant responded on 22 November to Diane Wilkinson who is the investigating officer as directed. The claimant responded substantively to one of the allegations and requested more information about the other allegations.[5]In the letter of 23 November from Ian Aldred from whom I did not hear any evidence, the respondent said “all of the above allegations have led to concern of your management and leadership of Victoria House and a breakdown of trust and confidence.” (sic). This is poorly worded and ambiguous. I find, however, that it was intended to say that there was a concern that the allegations amounted to a breach of trust and confidence. I have no doubt however that the claimant would have found this upsetting and it was an ill thought through statement. Nonetheless I find that Mr Aldred had not at that stage already concluded on the basis of the letter that there was a fundamental breach of the implied term of trust and confidence between the respondent and the claimant.[6]On 23 November 2023 the claimant raised a grievance about the conduct of Mr Aldred and about his alleged failures to address shortcomings of Deborah Alcock. The grievance also criticised Keeley Mitchell the operations director and the grievance was said to also criticise Shelagh Murphy. Although Ms Murphy is not referred to by name in the grievance, I infer that she was one of the people referred to by their role, and the respondent did not challenge the assertion that Ms Murphy was the subject of part of the claimant’s grievance.[7]Ms Wilkinson then sent the claimant a revised letter with amended allegations on 12 December 2023. Ms Wilkinson had been on leave and she did let the claimant know there would be a delay. Ms Wilkinson did not however update the claimant about her suspension at the time as the respondent’s policy required. The revised letter included five substantive allegations broken down into sub allegations with a total of 16 allegations. I do not address all of them because some were not pursued and the majority were ultimately not upheld.[8]In fact the allegations that were put in the original letter did not exactly match in format the allegations that were ultimately upheld at the end of the disciplinary hearing. As far as I can marry the two sets of documents up, the original allegations that were preceded and were upheld were 2.1 - you misled Hull safeguarding by informing them of a medication incident involving RSW PF was being dealt via a disciplinary investigation when this was not the case; 2.3 - you misled your line manager and the senior leadership team regarding completion of the being our best (BOB) process [this is the respondent’s appraisal process] and have not conducted the required reviews with your staff.[9]These two allegations were put as allegations of dishonesty. 10.5 Reserved judgment with reasons – rule 61 2 March 2017 3.2 – you failed to investigate concerns raised with you by a visitor relating to RSW PF administering unmeasured medication into the cap of a bottle and pouring it down the throat of PWS LM who has eating and difficulties; and 3.3 – you failed to ensure that RSW PF was competent to administer liquid medication.[10]These latter two allegations were put as allegations of behaviour that compromises the “people we support’s” care and safety.[11]The claimant responded by email in detail to these allegations on 15 December 2023.[12]In respect of allegation 2.1 the claimant said that she informed safeguarding that she would look into the medication issue. That is not consistent with the email chain in which the exchange took place, but nor does the claimant say that the matter was being dealt with by a disciplinary investigation. She in fact said in the email that she had referred it to HR to investigate.[13]In respect of 3.2 and 3.3 the claimant said the concern was looked into and she would need access to medication and training competencies to answer the allegation. She also said, in respect of the medication issue generally, that she had taken the relevant worker off medication – that is to say she had stopped him being able to administer medication – and had told Mr Aldred that on 23 November during her suspension meeting.[14]In respect of allegation 2.3 the claimant said “I have not misled Ian Aldred nor the senior leadership team regarding the BOB process as no one ever asked me about it, I can confirm that I did put all the predicted BOB scores on the system as I normally do, as these are not shared with staff until the calibration meetings have taken place. Five BOBs were completed and I had planned in the remainder, but was then suspended from work so was not able to complete them.”[15]The claimant also said that allegations2.1 and2.2 had only been added after conversations with Mr Aldred and/or the submission of her grievance. The claimant referred to this in her evidence but I did not hear any specific detail about the alleged link and it is not obvious from the documents what the claimant was referring to.[16]There then followed an investigation process. The claimant was interviewed by Ms Wilkinsons and a number of other people were interviewed. The claimant agreed in evidence that she had had the opportunity to put her case.[17]Particularly, I make the following findings about what the claimant said in the investigation: 17.1. The claimant said in her responses to the investigating officer that she had not referred to a disciplinary in her correspondence with safeguarding and she did not know at the time who had administered the medication and that she had done some initial fact finding, but it was not documented and would not have been documented until she knew who was responsible. She said she believed it was a particular worker and he had been taken off medication. (As I have already said, that means he was stopped from dispensing medication). She said that Mr Aldred 10.5 Reserved judgment with reasons – rule 61 3 March 2017 knew about that process and was happy with it before she was suspended. 17.2. In respect of the BOBs the claimant said she had only done one and someone else had completed four on her behalf. She said she believed they were in her desk draw or laptop bag waiting to be filed. (I note that this is not consistent with what the claimant later said in her disciplinary meeting). The claimant said that the reasons there were performance scores on the system was because she had uploaded predicted scores, as she had done previously, with the intention of later confirming after the BOBs were completed.[18]On 27 December 2023 the claimant emailed Ms Wilkinson to confirm that the notes of the meeting were accurate, the email was polite and friendly and I find that this reflected the fact that the claimant was content with the way Ms Wilkinson was conducting the investigation. She had worked with her previously and had no reason at that time to think the investigation was not being conducted appropriately. The claimant also raised concerns that the allegation seemed to be coming from Ms Alcock and Mr Aldred and were planned and bullying. She was concerned about the changes to the allegations and how that would impact on her ability to deal with staff on her return to work when allegations were allowed to be made without being investigated.[19]After the claimant was interviewed on 20 December Ms Wilkinson interviewed a number of other people including Deborah Alcock and Ian Aldred. They gave accounts that conflicted with the claimant’s evidence. I make the follwign findings about what Ms Alcock and Mr Aldred told Ms Wilkson in their investigation interviews: 19.1. Ms Alcock said she had investigated the medication issue, rather than the claimant. Mr Aldred said that the claimant had not told him about the medication issues but he had found out about it by a system notification from Datix (the respondent’s computer system for recording issues). Mr Aldred said that he had met with the claimant on 13 November and she said she had got stuck on the medication investigation and he advised her about it on 13 November after the incident had occurred on 15 October. Mr Aldred said it appeared that the claimant had not completed the BOBs but had done the desktop exercise, which defeated the point of them. He said that Ms Alcock could access the claimant’s office to check for the completed BOB forms.[20]It is the claimant’s case that Ms Wilkinson failed to consider the respondent’s investigation policy and procedure. Unfortunately, there was no copy of that document in the bundle before me. It may be the case that Ms Wilkinson did not follow that procedure, but the claimant has not identified any prejudice arising from that and indeed has not been overly critical of the way in which Ms Wilkinson conducted the investigation.[21]The claimant’s problem with the investigation in evidence was that matters she had raised in her grievance found their way into the allegations. The claimant was not specific about what these were however, and actually the claimant accepted that she had no criticism of the way Ms Wilkinson conducted her investigation. I find that there is no evidence to show that the grievance influenced Ms Wilkinson’s investigation. I prefer Ms Wilkinson’s evidence that 10.5 Reserved judgment with reasons – rule 61 4 March 2017 she knew that the claimant had submitted the grievance, but she did not see it and did not know who was investigating it or what had happened to it.[22]In reality the claimant’s complaint was really that, in respect of the allegations that were upheld against her, the evidence of, predominately, Mr Aldred was given more weight than her evidence.[23]At the conclusion of the investigation Ms Wilkinson produced a report summarising the evidence in supporting the allegations against the claimant and the evidence contradicting those allegations. She recommended that the matter go to a disciplinary hearing.[24]The claimant was unhappy with the report. She said that she felt Ms Wilkinson should have interviewed different people. I did not hear any evidence about which additional people the claimant says Ms Wilkinson ought to have spoken to. The claimant was also unhappy that Ms Wilkinson had spoken to additional witnesses after she had spoken to the claimant and that the claimant did not then have an opportunity to comment on that evidence before the report was completed. The claimant was, however, able to comment on that evidence in the disciplinary hearing.[25]The claimant did say that she had no issues with how Ms Wilkinson conducted herself. She said “I never thought Diane personally was doing anything untoward.”[26]The report was then sent to Mr Lee Richards who chaired the disciplinary hearing. A disciplinary hearing was due to be heard on 26 January 2024 but was re-arranged for 2 February as the invitation had been sent to the wrong place. The meeting was conducted by Microsoft Teams. The claimant did not say she was not given adequate notice of the hearing, although the Teams invitation was not sent until 30 January, and she does not complain that she was not given an opportunity to be represented. The claimant attended on her own.[27]The claimant had the report and the full investigation material in advance of the disciplinary hearing. I make the following findings of fact about the disciplinary hearing. 27.1. In respect of the allegation about misleading the safeguarding team, the claimant said, “I rang HR and spoke to either Andrea or Amanda who are our area’s people and explained the incident to them and they said before we do it we need to fact find. I said I am sending it to HR first and they said I needed to fact find first. Later on in emails it states I did a fact find. I got hold of HR myself and I knew it was a man who did it but we didn’t know who. We did fact find first to figure out who it was.” 27.2. In respect of the allegation about completing the investigation into the worker who is alleged to have maladministered medication, the claimant said “I agree with this. I should have made sure that Paul was off meds and that this incident was on Datix and I didn’t. There was a lot on in the surface which should have dealt with this but so much going on at the same time. Datix opened cases, difficult to do them all, no excuses I 10.5 Reserved judgment with reasons – rule 61 5 March 2017 should have done this as service manager. This could have put other PWS at risk and even though I told a team leader to do this I didn’t go back and check he wasn’t on meds. I spoke to Ian a lot about the demand and workload and if we could have another assistant manager, as well as my struggles in the Service”. 27.3. I find in respect of this allegation that the claimant admitted she had not handled this as well as she could, but explained that she had not misled safeguarding and that Mr Aldred knew about it. 27.4. In respect of the BOBs the claimant said that her workload increased when Mr Aldred started and he asked her to do all the BOBs. She said that she did one, delegated some and booked in others. She said that her own BOB with Mr Aldred had not been completed because he was too busy, and that she and Mr Aldred had verbally agreed to extend her deadline for producing the BOBs that she was required to do. 27.5. The claimant said that meetings had been moved around, but one BOB had been done, and that was in her desk drawer. As noted before she had mentioned this in her interview with Ms Wilkinson but in slightly different terms. 27.6. In respect of the allegation that the claimant had not ensured that PF was confident to administer medication, the claimant agreed that she had not spoken to him and that had not been handled correctly. The claimant said that this related to being very busy and that she had spoken to Mr Aldred but there was no record of that and she wished she had kept a record. 27.7. The claimant said in the disciplinary hearing that she felt that Ms Alcock wanted her out since she had returned from maternity leave and she felt that she was being bullied and that the allegations related to her grievance.[28]I find that the claimant was able to participate fully in the disciplinary process. She was given an opportunity to answer her case and she did so. I also find that the claimant appeared open and honest, and admitted the errors that she had made.[29]After the hearing Mr Richards asked for someone to look for the BOBs the claimant said were in her office but none were found. He also asked for the HR records to be checked to see if there was any record of the claimant calling them as she had said she had done but no such records were found. The claimant was then dismissed and the decision was communicated to her in person on 7 February 2024 and followed up in writing on 15 February 2024. In the meantime, on 12 February, the claimant received her grievance outcome which was effectively not upheld.[30]Three of the disciplinary allegations were upheld against the claimant. These were 30.1. “you misled Hull Safeguarding by informing them that a medication incident involving RSW PF on 15 October 2023 was being dealt with via a disciplinary investigation when this was not the case and subsequently failed to investigate the concerns raised by a visitor relating to RSW PF administering unmeasured medication into the cap of a bottle and pouring it down the throat of PWS LM who has eating and drinking difficulties.” 10.5 Reserved judgment with reasons – rule 61 6 March 2017 30.2. “you misled your line manager and the senior leadership team regarding completion of the Being our Best process and had not conducted the required reviews with your staff by the deadline of 31 October 2023”. 30.3. “you failed to ensure that RSW PF was competent to administer liquid medication.”[31]The remaining allegations were not upheld.[32]Mr Richards decided that cumulatively this amounted to gross misconduct.[33]In oral evidence he said that each of the two safeguarding issues, the first and the third referred to above, would amount to gross misconduct on their own but the second one might not. He did, however, stress the importance of complying with the process for the purposes of supporting staff and maintaining standards.[34]In his witness statement Mr Richard said, “Shirley and I as the panel fully considered the mitigation put forward by the claimant about all the allegations and in doing so decided there was not enough evidence to prove or disprove some of the allegations so we did not uphold those as we couldn’t clearly state whether they should be upheld or not upheld based on the evidence provided. However the ones that we upheld due to evidence supporting them showed a serious disregard for both the people we support and for the people the claimant communicated with around these issues, irrespective of whether the service was busy at the time. We also considered the claimant’s clean record and whether that should influence lowering the sanction to be applied. However, the service was under scrutiny from external parties including the safeguarding issue raised with the local authority, so she should have been extra vigilant and careful to follow all policies and rules to the point. However, her attitude in the hearing was that it was everyone else’s fault and not hers. She didn’t own any of the issues, yet it was her responsibility as registered manager for the service to ensure that things were being done and that she followed up to ensure that things were done. The evidence was that she had not done so and adding in the way the claimant was in the hearing, including lying to us a panel, we felt that summary dismissal for gross misconduct was the appropriate outcome. We discussed other sanctions but had no confidence that she would ensure the safety of the people we support if we gave a lower level sanction and brought her back to the service, so saw no other possible outcome than dismissal. This outcome was entirely our decision and was only made after the hearing and the further investigation details had been given to us.”[35]The reference to the claimant lying was a reference to her saying to the panel that she had called HR about the medication investigation, but on checking there were no records of that call. I conclude, therefore, that Mr Richards concluded that the claimant was deliberately lying about that to the panel.[36]I accept Mr Richard’s evidence. I find that Mr Richards made his decision honestly and in good faith. He weighed the evidence he had heard from the claimant and the other witnesses and decided to prefer the evidence of Mr Aldred and the other witnesses over that of the claimant.[37]The claimant appealed against the decision on 21 February 2024. The appeal was to be sent to Keeley Mitchell the operations director and the claimant asked in her appeal that Ms Mitchell did not hear it because she was named in the 10.5 Reserved judgment with reasons – rule 61 7 March 2017 grievance. The appeal was therefore allocated to a Ms Sheila Murphy. Ms Murphy provided a witness statement to this Tribunal but did not attend to give evidence.[38]There was an appeal hearing on 1 March 2024. The claimant’s complaint about this was that firstly, as Ms Murphy was referred to in her grievance she should not to be hearing the appeal. The claimant raised this at the appeal hearing and Ms Murphy said that she did not know that and asked if the claimant was happy to carry on. The claimant said she was and her evidence was that that was because she wanted it over but was in reality intimidated by Ms Murphy. On balance, I think it unlikely that the claimant was particularly intimidated by her. She has very properly stood up for herself previously and was able to raise a grievance against her manager and tell the operations director it was not appropriate for her to hear her appeal. The claimant’s evidence was that having heard in her appeal that people involved in the grievance, namely Ms Mitchell ought not to hear the appeal, the respondent had a duty to ensure that no one involved in her grievance was involved in her appeal.[39]I find that the claimant had the option to ask to change the person who heard the appeal at the start of her appeal but chose not to do so. The claimant’s other complaint about the appeal was that Ms Murphy did not go through her appeal points in as much detail as the claimant would have liked and was only focused on new evidence. It was not disputed that the appeal process did not provide for a full re-hearing.[40]Having read the appeal hearing notes I agree with the claimant that her points do not appear to have been fully considered. The record of the appeal meeting shows that Ms Murphy was dismissive of the claimant’s appeal points and very much gave the impression of being on the side of management. She appeared to defend the dismissal decision in conversation with the claimant in respect of each point the claimant made, and was interested only in new evidence and not interested in considering objectively if the decision that Mr Richards had made was correct.[41]In my judgment Ms Murphy approached the appeal as a rubber stamping exercise and I find that the appeal notes themselves, even without more, give a clear impression that Ms Murphy had made up her mind not to allow the appeal from the very start. This impression is confirmed by Ms Murphy’s statement in her witness statement that, “the claimant didn’t take responsibility for her actions. I’d say this was the most clear cut appeal that I have done in terms of not feeling the original sanction should be amended as nothing of significance was raised in the appeal.”[42]Unsurprisingly Ms Murphy did not uphold the claimant’s appeal.Law
[43]Section 98 of the Employment Rights Act 1996 provides as far as is relevant:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show — (a) the reason (or, if more than one, the principal reason) for the dismissal, and 10.5 Reserved judgment with reasons – rule 61 8 March 2017 (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it — … (b) relates to the conduct of the employee, … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) — (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.[44]''A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee'.' Abernethy v Mott Hay and Anderson [1974] IRLR 213, [1974] ICR 323:[45]In terms of reasonableness, British Home Stores Ltd v Burchell [1978] IRLR 379, [1980] ICR 303, provides valuable and regularly used guidelines: ''What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further”. (Our emphasis).[46]It is trite law that the Tribunal must not substitute its own decision as to whether it thinks the decision of the employer to dismiss the employee was right, but must decide whether the actions of the employer in dismissing the employee were within the range of reasonable responses of a reasonable employer. There is no burden of proof on the claimant or the respondent to show whether the decision was within the range of reasonable responses or otherwise reasonable within the meaning of subsection 4. It is a matter for the Tribunal’s judgment. 10.5 Reserved judgment with reasons – rule 61 9 March 2017[47]I refer also to the case of Whitbread and Co Plc v Milnes [1988] IRLR 501. That provides that an unfair appeal process can render the dismissal unfair even if the decision at the first stage was procedurally adequate. If the decision at the first stage was procedurally fair and taken in good faith but the employee feels the decision was factually wrong, an appeal offers an important safeguard against dismissing officers making procedurally competent decisions in good faith but which are just not factually correct. This is particularly important, as the Tribunal does not have the power to substitute a different decision where it takes a different view of the decision to dismiss on its merits, or when new facts emerge in the occurs of the Tribunal demonstrating the employees innocence.[48]In respect of the claimant’s claim for breach of contract, the claimant is entitled to the greater of her contractual notice or the minimum statutory notice set out in section 86 of the Employment Rights Act 1996. This provides, as far as is relevant to this case, for one week’s notice for each complete your of continuous employment.[49]However, the claimant is not entitled to notice to end her contract if she acted in such a way so that the respondent can treat her as no longer bound by the contract of employment or that her conduct goes to the root of the contract of employment undermining it. This is otherwise referred to as gross misconduct. Rules and guidelines as to what amounts to gross misconduct in the respondent’s policies and procedures can be helpful in considering whether a particular act or acts amount to gross misconduct, but they are not binding on the Tribunal. Conversely, however, an employer will struggle to justify dismissal as gross misconduct if their rules say the conduct relied on is not gross misconduct.Conclusions
[50]In my judgment the reason for the dismissal was a reason falling within section 98(2) namely a reason related to conduct.[51]I have no hesitation in finding that Mr Richards genuinely believed that the claimant was guilty of the misconduct which he upheld. Ms Bunton submitted that in fact the claimant had not committed gross misconduct and Mr Richards cannot hold any reasonable belief that the claimant was guilty of gross misconduct, but in my view that is not the correct test.[52]The test is whether Mr Richards genuinely believed that he was dismissing the claimant for a reason related to her conduct. As I have already said he did have that belief for the reasons set out in my findings of fact. All of the evidence before him demonstrated that the claimant was guilty of some misconduct and in fact the claimant admitted as much in respect of the way she dealt with the recording of the investigation and following up the inquiries as to PF’s competence.[53]Turning then to the reasonableness of the decision, in my view there was a reasonable investigation. The claimant had little to criticise Ms Wilkinson for and as I have set out in my findings she conducted a reasonably thorough investigation. I have no reason on the evidence I have heard to believe it was not an impartial investigation. In fact it was Ms Wilkinson’s full time job to conduct such investigations, and the claimant had had experience of that, and had little to criticise Ms Wilkinson for about it. 10.5 Reserved judgment with reasons – rule 61 10 March 2017[54]Having conducted a fair investigation, the next test is whether that investigation gave Mr Richards reasonable grounds to think that the claimant was guilty of the conduct of which she was accused. I find that Mr Richards did have reasonable grounds for believing that the claimant was guilty of conduct of which she was accused on the basis of the investigation.[55]Mr Richards was entitled to prefer Mr Aldred’s evidence over that of the claimant and he gave an explanation as to why he had done. The evidence that the claimant gave was inconsistent with the documentary evidence particularly. Although it was not clear cut and was at times confusing, the communications with the safeguarding did tend to suggest that the claimant had referred the investigation to HR. The claimant was inconsistent in her evidence to Ms Wilkinson and then to the disciplinary hearing as to what level of investigation she had conducted and her own evidence was not consistent with that of Mr Aldred and Ms Alcock. It was then, reasonable in these circumstances for Mr Richards to prefer the evidence of Mr Aldred.[56]In respect of the failure to ensure that PF was competent to administer liquid medication, the claimant admitted that she had not taken steps to ensure he was removed from administering medication and recording the incident and she could have done that better.[57]The respondent’s role is to look after vulnerable and disabled people who are reliant upon the respondent’s employees to ensure that they receive their medication correctly and appropriately. Taking steps to ensure that staff are doing that very important job properly must obviously be an important part of the respondent’s job as a registered manager.[58]In respect of the BOB process, Mr Richards was entitled to find that the claimant had not conducted the BOB process. He had gone out of his way to make further enquiries as to whether the claimant had in fact undertaken one of the BOB processes and to check wither the documents were in the claimant’s desk as she had said. Having found that that was not the case, Mr Richards was entitled to find that the claimant had not complied with the process. He was entitled to prefer Mr Aldred’s evidence and he was entitled to make a finding that the claimant was guilty of that conduct.[59]Turning finally in respect of this part to the question of whether the decision to dismiss the claimant rather than apply some other sanction was within the band of reasonable responses of a reasonable employer.[60]It is not my role to consider whether I would have dismissed the claimant. If one employer could reasonably have applied a lower sanction, while another could reasonably have dismissed the claimant I must find that the decision was within the band of reasonable responses.[61]The facts underlying this claim are about important matters relating to the safeguarding of very vulnerable people, and that is a matter that I can consider. The protection of the people the respondent supports must be one of the most important roles of a registered manager and the respondent must have confidence that procedures will be strictly adhered to at all times. In my view, the initial decision to dismiss the claimant did fall within the band of reasonable responses of a reasonable employer. 10.5 Reserved judgment with reasons – rule 61 11 March 2017[62]However, as I have referred to in the case of Whitbread and Milnes a fair appeal is an important part of a fair dismissal. Ms Murphy did not conduct a fair appeal and there was at least a possibility, albeit in my view a small possibility, that an open minded appeal officer may have taken a different view of the seriousness of the claimant’s conduct from that of Mr Richards, or considered that a lesser sanction or more support for the claimant could be an acceptable outcome for the respondent.[63]That was an alternative view that I am not entitled to consider as the Employment Tribunal. While I am required to consider only whether the decision within the band of reasonable responses, Ms Murphy had a wider discretion. The claimant was deprived of a proper opportunity to have the decision overturned and to try to retain her employment.[64]In my view the decision to pre-determine the appeal and not give it proper, open minded consideration was outside the band of reasonable responses of a reasonable employer, and for those reasons the respondent’s decision to dismiss the claimant overall was not within the band of reasonable responses of a reasonable employer and consequently the claimant’s claim of unfair dismissal is well founded and is upheld. I did not hear submissions about Polkey or contributory conduct. Those are to be determined at a remedy hearing.[65]Finally I consider the claimant’s claim for breach of contract. In my judgment the failure by the claimant to properly investigate and deal with PF and his medication must amount to gross misconduct or a fundamental breach of the contract of employment.[66]As a registered manager of the care home the claimant had an overwhelming obligation to ensure the safety and well being of the people for whom she was responsible. There was a period during which either PF continued to administer medication or did not know why he had not been allowed to administer medication, and in circumstances where the claimant was aware there was an allegation that he had administered medication in an unsafe way, potentially putting residents at risk.[67]This must go to the root of the contract of employment, the contract being for the claimant to act as a registered manager.[68]For this reason the respondent was entitled to summarily dismiss the claimant because she was in repudiatory breach of contract.[69]Similarly or, alternatively, cumulatively, the allegation that the claimant misled the safeguarding team amounts to a repudiatory breach of the contract. I accept Ms Bunton’s submissions that the claimant never said that the matter had been referred to HR for a disciplinary investigation but that is to miss the point.[70]In my view she had indicated to the safeguarding team that an investigation was ongoing, and the evidence that she gave to Mr Richards clearly indicated that an adequate investigation had not happened for the reasons I have already set out.[71]The safeguarding team exercise an important function of ensuring that care home providers provide a safe service, and they rely on the registered managers to provide accurate information and the claimant did not do so. 10.5 Reserved judgment with reasons – rule 61 12 March 2017[72]The respondent was therefore entitled to treat this as a repudiatory breach of contract and dismiss the claimant.[73]It is not strictly material, but I find that the failure to complete the BOBs does not amount to a repudiatory breach of contract, and had that been the only allegation the respondent would not have been entitled to summarily dismiss the claimant for that.[74]For these reasons the claimant’s claim for breach of contract is not well founded and is dismissed. Remedy will be determined at a future hearing.