Mr M Gutch v East Sussex County Council: 2301571/2024
EMPLOYMENT TRIBUNALS
Case No 2301571/2024
Between
Mr M GutchClaimantEast Sussex County CouncilRespondent
Before
Employment Judge Fredericks-BowyerIn person for claimantMs H Curtain (instructed by Counsel) for respondentDate 24 September 2024
JUDGMENT
The claimant’s complaint of unfair dismissal is not well-founded and is dismissed.
REASONS
[1]These reasons are provided at the claimant’s request after I dismissed his complaint of unfair dismissal in an oral judgment on the second day of this hearing.[2]The case concerns the claimant’s dismissal for what the respondent considered to be poor performance, after the claimant’s performance did not improve following a performance improvement plan. This case is important in that it is a classic performance related unfair dismissal claim, with the application of principles which will be at play in all such cases.
The hearing
[3]The hearing took place via Cloud Video Platform. The claimant represented himself and gave evidence in support of his own case. The respondent was represented by Ms Curtain, a barrister, and called evidence from Leigh Prudente (Assistant Director (Operations) ASC at the respondent), Tricia Field-Riley (Practice Manager) and Mark Stainton (Director of Adult and Social Care). I had access to an agreed bundle of documents which ran to 535 pages. Ms Field-Riley supplied a second witness statement and exhibit after the evidence deadline; the claimant did not object to its inclusion so it was admitted. The issues 1 of 16
The issues
[4]The legal issues to be determined in the hearing were agreed at the outset:- 4.1. What was the reason for the claimant’s dismissal (the respondent says it is due to capability)? 4.2. Was that a potentially fair reason within section 98(4) Employment Rights Act 1996? 4.3. Was the decision to dismiss a fair decision in all the circumstances? 4.4. Was a fair procedure followed?
The relevant facts
[5]The facts as I find them on the balance of probabilities are set out below. Many of the facts relevant to the determination of this claim were agreed. Where there was a conflict in the evidence or a dispute about the factual position, I explain how I have resolved that conflict and dispute at the relevant time. The claimant’s role and expectations of him[6]The claimant was employed by the respondent from 1 June 2016 to 7 November 2023. At the time of dismissal, the claimant was employed as a Resource Officer in the Continuing Healthcare team of the Adult Social Care (“ASC”) department at the respondent. That is a department of considerable social importance, with critical functions including:- 6.1. With the NHS, carrying out CHC eligibility assessments to determine what funding an adult may receive from the NHS; 6.2. Conducting safeguarding assessments for vulnerable adults in the local area; and 6.3. Conducting section 41 Care Act 2014 enquiries when safeguarding concerns are raised about adults living within the respondent’s area.[7]The requirements of the claimant’s role were set out in the Grounds of Resistance on page A29. The claimant did not disagree with the high level description of his duties, which were set out as – “The claimant’s role included completing a number of tasks in line with ESCC’s legal duties such as undertaking CHC Assessments, Mental Capacity Assessments, Carers Assessments and reviews, section 42 Safeguarding Enquiries under the Care Act 2014, Care Act assessments to determine eligibility for Local Authority funded services, and referring to other teams and departments… In terms of CHC Assessments, the claimant’s role was to represent the adults of East Sussex appropriately in the CHC assessments to ensure than an adult’s eligibility for funding is accurately assessed and ensure that the correct funding stream is identified. If the claimant’s record keeping is not accurate this increases the chances of a challenge of the funding stream identified. If an adult who should be eligible for NHS funding is not assessed properly the adult could end up sharing the financial burden of their care and, if local authority funding eligible, ESCC could also end up paying for services that should be funded by the NHS. The claimant, like the rest of the CHC Department, is 2 of 16 required to adhere to the key performance indicators as well as the CHC Department’s policies and procedures, these include maintaining accurate case notes and case recordings within 28 days.”[8]It is clear that the claimant’s role is part of a crucial front line social care service. I accept the respondent’s position that the role required accuracy and promptness of response, with thorough documentation, as the claimant’s role was making assessments and giving opinions which were based in social care legislation. His work formed part of an overall decision making structure which could be the subject of legal challenge and review. I therefore find the features of the role, and the importance of those features, to be factually correct in the way outlined by the respondent in the paragraph above.[9]In the hearing, the claimant queried where the 28 day deadline came from, challenging the respondent to show him where that requirement was grounded in legislation or policy or procedure. This was a feature of the claimant’s resistance throughout his performance improvement process. I was shown a document which sets out the imposition of that requirement by the respondent on 25 January 2023 (B104):- “There is a requirement to ensure all work is completed within 28 days, eg all documents to be sent out including to ICB, LRP/IRP, responsibility to share/consent to share and closing cases down. If a case is closed, workers will need to update and reopen the case. Workers to check guidance if not sure, 28 days to complete a core assessment, (those that are being case managed by CHC workers, transferring these cases back to wider teams is not included within the 28 days guidance – workers will hold these cases until a 6 week review and then if stable to be transferred back to the wider LA teams).”[10]The claimant attended the meeting. In cross examination, he accepted he knew about the 28 day guidance but intimated that he did not consider he should be bound by it where the source of the requirement was not made clear. The claimant said that the 28 day deadline was sometimes very difficult or impossible to comply with because of the reliance on third parties such as the NHS trust the respondent worked in conjunction with. The respondent noted that the NHS trust had its own 28 day deadline to comply with and so, even where delay was unavoidable, all parties should still be acting as quickly as possible, with thoroughness and accuracy.[11]Where prompt assessment and service delivery is required to deliver a competent service fit for purpose, as is the case here, I consider it more likely than not that there was a service response time standard on the claimant. That is documented to have been 28 days, save for the specific carve out outlined by B104. I find that this was the service standard expected from the claimant, as he says he knew. I do not consider the source of that expectation to be material to the finding about whether it was applied to the claimant. The simple fact is that was the expectation, and that was what the claimant generally understood to be the expectation. Regardless of the precise days allowed, the claimant accepted he always knew that he was expected to work promptly and with appropriate thoroughness and accuracy. The claimant’s performance[12]The claimant was considered to have fallen below performance standards in 2021. Ms FieldRiley detailed how this was dealt with informally by the claimant’s then line manager, who 3 of 16 secured him the respondent’s additional training support to assist with task prioritisation and managing work efficiently. Those more historic issues did not result in the claimant’s dismissal, but it is factually relevant history in terms of the respondent’s reaction to the claimant’s performance because I accept the respondent’s position that: 12.1. The claimant had a previous performance issue, and 12.2. He had already completed the training modules provided by the respondent to support underperformance prior to the later performance issues arising.[13]Ms Field-Riley completed an audit of one of the claimant’s files on 3 November 2022. Of 12 measured fields of performance and competence, 7 were recorded as “requires some improvement” (B80 to B82). The narratives for the requiring improvement fields raised concerns about the claimant’s thoroughness of approach (eg “There is evidence that both the adult and their spouse were involved in the ASC CHC assessment however their views are not adequately recorded within the assessment). The audit’s overall conclusion was for the claimant to secure “improvement in case note recordings to cover all aspects of work undertaken. MCA training.”[14]The claimant attended a line management supervision with his manager, Colin Reynolds, on 4 November 2022 and 7 November 2022. In that meeting, the claimant said that his workload was increasing and that he was not enjoying work as much due to the increasing burden of administrative tasks (B83). On B84, Mr Reynolds records a conversation had about the claimant’s recent audit and what to do about areas which required improvement:- “Martin had a recent audit completed in which there were several areas identified that requires improvement. Discussed a number of case notes and at what stages they should be added. If information has been recorded in the SCA there needs to be a case note signposting that. Sending out assessments can be posted or emailed. Upload copy of email sent to eCaseFile. Discussed consent and MCA (Mental Capacity Act) Best Interest Decisions.”[15]A redacted record of specific cases discussed was at pages B85 to B87. It is apparent that a number of cases had fallen behind the applicable time guidelines and that Mr Reynolds sought to inject impetus into the claimant to complete the tasks. Examples of Mr Reynolds’ comments include:- 15.1. “Review allocated 02/09/2022 – [CLIENT] was found not eligible for CHC funding. Martin has not yet written up the Social Care Assessment – have advised Martin that this needs to be written up ASAP”. 15.2. “CHC Review allocated 20/09/2022 – [CLIENT] was found eligible for CHC funding… Assessment has been written up but not posted out yet – have asked Martin to send out asap and to add a case note once done”. 4 of 16[16]There was then a number of cases discussed which were between 3 and 28 days since allocation where Mr Reynolds recorded being told that the assessments were complete but that the cases had not yet been written up. The claimant was asked to complete those ‘asap’. On 1 December 2022, Mr Reynolds wrote to the claimant following a review of his work progress (B88). The relevant parts of the e-mail, following the November meetings outlined above, were:- “I was really surprised to see the same cases in your tray we discussed in the 4 th November Supervision and it does not appear that any of those cases have been completed since then. I am concerned about your caseload management and throughput. I am aware that your previous Supervisor did some supportive work with you around time management and managing your workload and feel that this needs to be repeated as you do not appear to be using those processes to stay on top of your work. It is my intention to speak to HR to discuss the best way we can support you to get on top of your work and manage your caseload more effectively. … your assessment for tomorrow has been cancelled and you do not have an assessment allocated for today. Can you please let me know which cases you are going to work on today and tomorrow to bring to a conclusion. This includes case noting all of your actions and sending the assessments out.”[17]Later the same morning, Mr Reynolds e-mailed the claimant a case by case breakdown of what the claimant had advised on 4 November 2022 and what the system recorded the case progress was as at 1 December 2022. The claimant was asked to explain what progress had been made for each. The e-mail started with the wording (B89):- “In supervision of 04/11/2022 we discussed the importance of completing assessments in a 28 day timescale, I am also aware that this has been discussed in team meetings. I note that you have several assessments that have not been completed within this timescale.”[18]The parties agree that the relationship between the claimant and Mr Reynolds became strained during the weekly supervision sessions. On 23 December 2022, Mr Reynolds wrote to HR (B91) to explain that the claimant had requested moving to a formal performance management process because(1) he did not accept his performance was behind colleagues,(2) he felt like he was being bullied out, and(3) the formal process would place more scrutiny on the actions of management. Those comments are supported by Mr Reynold’s meeting notes at B92. In the hearing, the claimant agreed with these points, and so I find that he did trigger the move to the formal process through his interactions with Mr Reynolds. The respondent’s performance review process[19]On 19 January 2023, Ms Field-Riley wrote to the claimant (B99) to initiate Stage 1 of the respondent’s Performance Improvement Procedure. The meeting was to take place on 27 January 2023, and the claimant was allowed to take a colleague or trade union representative. Mr Reynolds and Ms Barham (from HR) were also to be present. The claimant was signposted to the respondent’s employee assistance programme. I was shown the Performance Improvement Policy at B13 to B20, but the claimant did not raise any 5 of 16 complaint with the procedure’s timetable or order, and so I do not set out the detail of the policy because it is not disputed between the parties that there was a procedure and that it was followed.[20]On 27 January 2023, the Stage 1 meeting took place. The performance targets from that meeting are set out at B106 to B116. There were 11 areas for improvement, as is set out in the table. The targets are expressed to bring the claimant up to speed with the time requirements for various tasks as part of the role, and to bring his practice in line with the respondent’s file documentation requirements.[21]Specific targets included:- 21.1. “Assessments to be completed as booked into MG’s calendar and all recording to be completed within one working day of the MDT decision. All assessments should be written up and completed within a 28-day timescale”. 21.2. “Financial Assessment Referral, Core Assessment Support Plan, including submission to Brokerage and funding panel to be completed within 28 days”. 21.3. “All actions to be completed within 48 hours of a verification decision to provide ESCC with the maximum time to action any Care Act 2014 Tasks as generated as a result of the CHC Eligibility Assessment. All assessments to be written up and concluded within a 28-day timescale”.[22]The performance targets include supportive measures, such as the pausing of any new safeguarding work allocated to allow the claimant to catch up with that important work. It is clear from the document that it was intended for the claimant to access support from any member of the management team.[23]The notes from the Stage 1 meeting were at page B117 to B122. The notes were signed by Ms Field-Riley but not by the claimant. I accept them as an accurate record of the hearing. The claimant agreed with the broad contents of the notes, and I was not persuaded that the respondent had made a false record. The claimant agreed with the key points from the meeting:- 23.1. He understood the purpose of the meeting and was content for it to continue; 23.2. He had no questions about the performance improvement process; 23.3. He had no questions to ask in relation to the targets set; 23.4. He understood the targets set; 23.5. He made no suggestions or contributions to the targets set; and 23.6. He was given the opportunity to ask questions at the end of the meeting, but he did not ask any.[24]On the same date, a case audit identified serious concerns about the claimant’s safeguarding response to a vulnerable person falling in a care home. The particular deficiencies with the claimant’s work are highlighted on page B128:- 6 of 16 24.1. “No appropriate MCA”; 24.2. “No appropriate best interest decision regarding the specific decision of consent to the SG enquiry”; 24.3. “No reasonable adjustment”; 24.4. “No adherence to the Equalities Act or Mental Capacity Act”; 24.5. “Lack of protective plan that is measurable and can be reviewed”; 24.6. “No obvious measure to reduce or mitigate risk of [XX] falls in future particularly in the communal areas of the home”; 24.7. “Lack of professional curiosity of how the home can demonstrate similar incidents will be avoid[ed] in the future”.[25]On 9 February 2023, Ms Field-Riley wrote to the claimant to summarise the 27 January 2023 meeting and the targets set (B135 to B137). Three of the targets were described as requiring the claimant to ‘undertake’ activities:(1) Continuing Healthcare Assessments,(2) Core Assessments, and(3) Safeguarding enquiries (which were then paused). In the summary of the targets currently applicable (1) and (2), it is clearly written that the assessments must be completed within the appropriate time-scales. I find as a fact that the requirements of the claimant were as expressed in the performance improvement targets and the summary of the targets. In other words, the use of the word ‘undertake’ was intended to communicate the completion of tasks within the appropriate time-scales. This had been explained to the claimant in the 27 January 2023 meeting, where he had confirmed understanding of the targets and did not ask any questions.[26]An end of Stage 1 meeting took place on 14 April 2023. The notes were shown to me from B146 to B155. The claimant took part fully in this meeting and did not query the accuracy of the arising notes. It is clear that the claimant still missed targets on time-scales. There was a significant discussion about the claimant’s approach to risk and safeguarding, and I find that the respondent had significant concerns remaining about the claimant’s attitude to risk and safeguarding. The claimant accepts that this was the weakest part of his practice. I am satisfied that the claimant had one safeguarding assignment which was 172 days since opening at the point of this meeting. Ms Field-Riley considered that there was “no good reason” for the case to still be open after so long (B149). I am also satisfied that the claimant was being given less safeguarding work than would ordinarily be required, and that his colleagues were picking up additional work as a result.[27]At the end of the meeting, Ms Field-Riley confirmed that there were areas of concern remaining and so the process would progress to Stage 2. The notes record she says (B154):- “We need to relook at the level of support that we are giving you to see the successful closure at stage 2. We have looked at giving you a reduced case load, to be fair we will need to look at increasing this back to a full case load which will be 3 CHC assignments plus an additional piece of casework. We will not give you any further safeguarding cases until at lease one of the current cases that we have discussed has been closed. We will assign a carers assessment to you to give you the opportunity to prove you can do this. At any point you can seek redeployment and we will be fully supportive in this”. 7 of 16[28]The claimant had no further suggestions for the support he required. The claimant was given a summary of the key themes of outcomes of the meeting in writing (B156 to B158).[29]A Stage 2 launch meeting took place on 21 April 2023, and notes were at B160 to B165. The claimant attended without representation and confirmed he was happy with this. Ms Field-Riley acknowledged that some improvement had been made, albeit with a reduced workload. She confirmed that the case load would increase to allow the claimant the opportunity to show that he could do the role adequately with a full workload. The claimant understood this. He queried how ‘tasks’ should be recorded, and it was agreed that a ‘task’ would be a piece of work delegated by management. The time-scales for completing each sort of task was clarified for the claimant, as is recorded in the meeting notes. The claimant queried how he could be assessed for contribution in team meetings if they were not minuted. It was decided that they should remain un-minuted but that the claimant’s contribution could be noted in his meetings with management. The claimant was able to ask any questions he wished to.[30]A further audit of the claimant’s work was carried out by Ms Field-Riley on 11 May 2023, and the audit notes were at B175 to B179. The claimant’s work was assessed as ‘requires some improvement’ in 8 of the 14 applicable areas. The key summary includes the conclusion (B178):- “The assessment is minimal and sparse, there is no clear information on how any of the risks are being managed. There are a number of risks across the domains, example 11 falls unwitnessed, no reference to any care plans to reduce risks or referrals to falls team etc.”[31]The end of Stage 2 meeting took place on 2 June 2023, and the notes were at B185 to B199. I accept the notes as an accurate summary of the meeting. It is apparent that the claimant was a more active and combative participant in this meeting. He queried when the 28 day time limit starts to run from, proposing that the correct construction was from when the client was assessed rather than when the case was allocated. When he was told that it was from allocation, as the notes record he was told numerous times previously, he asked for that to be shown in writing. When the accuracy of his work was questioned, he refused to accept it until shown it, and then he argued that the work had not been sent out so it was not a problem. He sought to introduce the notion that someone else could have tampered with his work as it was on the live system. The claimant then queried whether the file audited had been agreed to, and was reminded that there was going to be a random file audit before the meeting took place, which this was. The claimant said he thought the audit was an inappropriate measure of his performance.[32]The claimant considered that the threshold to move to Stage 3 had not been met. Ms FieldRiley disagreed, advising (B199):- “I’ve had a conversation with [HR] and looking at the 10 areas of concern on the support plan, we have signed off one as completed satisfactorily… made note that one is ongoing as there was not enough time for this to be completed… The other 8 remain areas of concern. We will therefore conclude stage 2 and move to stage 3 of the process”. 8 of 16[33]The claimant was sent a written outcome for the Stage 2 meeting (B204 to B206). An attempted Stage 3 launch meeting took place on 14 June 2023, and the notes are at B200 to B203. I accept the notes as an accurate summary of the meeting. The claimant was accompanied at the meeting by a Union representative, but that representative was not prepared for the meeting so the meeting was postponed. The claimant said that he intended to appeal the process moving to Stage 3.[34]On 20 June 2023, the claimant appealed against the decision to move from Stage 2 to Stage 3 of the performance improvement process. His grounds of appeal were at B207 to B208. The grounds of appeal were:- 34.1. Management failure to provide written documentation showing the 28 day deadline process for work; 34.2. Management failure to provide evidence of case recording not adhering to the policy and procedures “sufficient for inclusion in a Stage 2” PIP; 34.3. Management could not have ‘serious’ or ‘significant’ concern about his work, because the audit showed only areas which required some improvement; 34.4. Lack of evidence from line management to show that the claimant did not show evidenced-based decision making; 34.5. The 8 areas of concern do not require ‘significant’ improvement and so the PIP should not have escalated to Stage 3; and 34.6. The claimant had not benefitted from the number of management supervisions that the management had committed to over the course of Stage 2.[35]Ms Field-Riley’s response to the appeal was at B224 to B229. The appeal outcome was at B231 to B234. No parts of the appeal were upheld. The appeal manager, Ms Woolston, made the following conclusions (which I summarise for brevity):- 35.1. The 28 day target was set by the department and should be adhered to, and there was evidence the claimant was told about it and had access to Intranet documents setting the targets out; 35.2. Management was entitled to conclude that the claimant’s practice fell short of compliance with policy and procedure; 35.3. The fact there were 8 areas which ‘required some improvement’ was sufficient to escalate to Stage 3 because of the wide range of issues, and it was not necessary for any one to be graded at a lower level for there to be escalation; 35.4. The requirements for evidence base had been explained to the claimant previously, but management was entitled to conclude that the claimant’s practice still fell short; 35.5. The case audit scores were appropriately made; and 35.6. The claimant benefitted from management meetings about his work, which were intended to provide supervision and support. 9 of 16[36]On 26 July 2023, Ms Field-Riley e-mailed the client in response to his case note to the effect that a safeguarding process could conclude. However, she raised concerns about the state of the file generally (B235):- “… I am not able to see a contingency plan on eCasefile, please upload asap. I note your comments regarding Mr and Mrs [X]’s agreement you can conclude the safeguarding, I have checked the enquiry findings and this is blank, as is the safeguarding action plans. I am unsure how you have provided the information for Mr and Mrs [X] for them to be able to say they are satisfied. I am concerned that there are no actions in the safeguarding plan to show how the risks are being managed or reduced in anyway. The Contingency plan actions should be included in the safeguarding plan and sent out. The process is for the safeguarding plan to be updated throughout the enquiry and the enquiry report would need to have been completed before outcomes were shared.”[37]On 28 July 2023, the claimant received positive feedback from a CHC Lead Nurse in the NHS for his responsiveness in sending back the Decision Support Tool document, which allowed the NHS team to keep on top of its own 28 day time limits (B237).[38]The Stage 3 performance plan and targets were at B272 to B282. I am satisfied that the plan shows that the claimant was still not meeting target in key areas. Files are noted as being beyond 28 days. One safeguarding file has been noted as being re-allocated to someone else because there had been no progress. One report was noted as having been amended by a colleague so that it was fit for purpose for sending out. There are numerous recordings to the effect that part of the work was complete but that key documents, such as contingency plans or safeguarding plans, were not completed. Despite improvement being noted, the claimant was described as continuing “to reference minimal information” and continuing “to not meet the timeframes for completion of some assessments…”.[39]The end of Stage 3 meeting took place on 11 August 2023, and the notes were from B283 to B299. I accept the notes as an accurate summary of the meeting. The claimant did not contest their accuracy in any substantial way. The notes show that the claimant did not agree with management about a piece of work being sent back to him. When Ms Field-Riley explained that it would be sent back if the supervisor was unhappy with it, the claimant suggested it was an over the top reaction which was unusual. Ms Field-Riley explained that this was the piece of work which she eventually amended herself and sent on because the claimant was slow to react to the changes required (B285). The claimant appeared to accept the returned work had been sat in his tray for a week without him looking at it. He said he was unhappy with the work being returned with red font because it made him feel like a child.[40]During discussion about the unsuccessful appeal, the claimant noted that Ms Woolston had said that the assessments were to be “undertaken” within 28 days, whereas it seemed the expectation was that they would be “concluded” within 28 days. Ms Field-Riley explained that undertaken in this context meant to be started, done and completed. The claimant disagreed. He did not accept that his performance impacted on the department KPIs (B287). Where the claimant felt criticised about his performance, particularly in terms of documentation, he sought to place responsibility for raising that issue with him upon 10 of 16 management and did not appear to accept that he had responsibility for his own work (B289).[41]During the meeting, the claimant raised that he felt he was being treated differently to colleagues, whom he said had similar issues being raised but were not being put through a formal process. Ms Field-Riley disagreed but said that it was not time to discuss others. The claimant was given the opportunity to comment on each area of required improvement. Points of improvement, and compliments received, were noted. The claimant disagreed with each point of concern and offered an explanation for the position. Each explanation was either the claimant seeking to shift responsibility for the perceived criticism elsewhere, or the claimant querying the relevance of the documentary stage said to be missing. The explanations were not accepted.[42]At the end of the meeting, Ms Field-Riley acknowledged some improvements made by the claimant, the compliments received, and the support in place. However, she concluded that (B298):- “You have not made significant improvements and your performance continues to be of concern. I am therefore going to recommend this is referred to a hearing to consider your continued employment on the grounds of capability. I can confirm that you will be suspended today on full pay. This is because no alternative duties have been identified you can do in the team. A neutral manager will take this forward.”[43]Written confirmation of the decision made was sent to the claimant on 16 August 2023 (B300 to B302). The claimant’s dismissal process[44]On 23 August 2023, the claimant was invited to a disciplinary hearing to take place on 7 September 2023 (B305 to B306). The claimant was permitted to be accompanied at the hearing. The management investigation report (which summarised the performance improvement process and contained all of that documentation) was enclosed with the letter. The claimant was permitted to submit his own evidence to be considered at the hearing. The hearing was to be chaired by Ms Prudente.[45]On 31 August 2023, Ms Prudente accepted further evidence from the respondent in the form of seven pieces of the claimant’s work (B318), shown to me in redacted form from page B320 to B362. On 5 September 2023, the claimant submitted two documents to be considered at the hearing (B363). The documents were shown to me from page B369 to B374. They were e-mails where the claimant was unable to apply for a secondment on 10 July 2023 because his team was under-staffed, and e-mails from an unsuccessful job application.[46]The claimant was supported at the disciplinary hearing by his union representative. Ms Prudente confirmed she had read the documents and asked Ms Field-Riley to focus on the evidence supporting why the areas of concern identified in the PIP remained. Ms Field-Riley did this with reference to the relevant documents.[47]The claimant was given the opportunity to ask questions and respond to each point raised by Ms Field-Riley. He raised his views that he had been singled out compared to colleagues, and queried whether supportive measures such as reducing his case load had actually taken 11 of 16 place. He asked for evidence of his case numbers, which was not available (it appears that it had not been asked for prior to the hearing). The claimant again queried why line management had not been aware of or raised issues with timescales on cases for which the claimant was responsible. He considered that his performance did not affect team KPIs and asked for evidence that this was the case. He expressed the view that it was not appropriate to put him through the whole process where there had been no external complaints about his work. He said he felt he was being discriminated against, but offered no views about any protected characteristic which was being affected. The claimant thought that due process had not been followed because the PIP had not been paused pending the outcome of his appeal. He again raised the issue of the word ‘undertake’ not meaning the same as ‘conclude’.[48]Ms Field-Riley summarised the respondent’s view of the impact of the claimant’s performance. She said that adults had been put through a distressing prolonged process which was not necessary. She said that carers did not receive their budgets in a timely fashion. She said that placements were at risk. She said that colleagues had needed to take over aspects of the claimant’s work, either because of operational need or because of the restriction on the claimant’s cases as a supportive measure to help him improve. In conclusion, Ms Field-Riley said she felt that the claimant’s work posed a potential risk to clients and the respondent’s work and reputation. She said that the claimant’s work level and performance was no longer sustainable. The claimant did not think that his work level warranted dismissal.[49]Ms Prudente adjourned to consider her decision, and then informed those present that she had decided to dismiss the claimant with notice. The reasons are described in full at B388 to B390, but in summary:- 49.1. A correct and fair process had been carried out; 49.2. The claimant had not shown sufficient progress in 9 of the 10 areas over the period of 8 months; 49.3. The claimant had attended relevant training prior to the implementation of the PIP; 49.4. There were examples shown of the claimant’s work falling far below expectations in terms of quality and time-scale, including cases taken away and then concluded within short time-scales; 49.5. There were concerns about safeguarding; 49.6. Performing below standards was a risk to clients and to the reputation of the respondent; and so 49.7. The decision was to dismiss having reflected on all the history, the support given, the time allowed, and the lack of sufficient improvement across 9 areas of concern.[50]The claimant was informed of the decision in writing on 12 September 2023 and given a right of appeal (B391 to B393). The claimant appealed on 19 September 2023 on the grounds of(1) ‘due process’ not being followed, and(2) being ‘discriminated against’ (B409). No detail was given to support those grounds. The hearing took place, after being rearranged, on 23 November 2023. The claimant could be represented. The respondent submitted a 12 of 16 management report (B420 to B427). Notes of the appeal meeting were at B430 to B439). The appeal was chaired by Mr Stainton, who had had no prior dealings with the claimant’s performance or dismissal process.[51]The claimant questioned the competence of the management involved with the dismissal process, and implied that Ms Prudente somehow introduced unfairness into the process. The claimant questioned the role of the HR advisers who might have been involved over several stages of the process, and been involved in a prior disciplinary process he had gone through which had resulted in a written conduct warning. The claimant considered that his IT access being removed 24 hours before the disciplinary hearing showed that the decision to dismiss had already been made. The claimant did not offer any other information to support the contention that he had been discriminated against.[52]At the end of the appeal hearing, Mr Stainton upheld the management decision. He did not accept any of the grounds of claimed failure to follow due process. He noted there was no evidence of discrimination. The claimant was sent a letter confirming that outcome (B440 to B442).
The relevant law
[53]Under s98(1) of the Employment Rights Act 1996, it is for the employer to show the reason for the dismissal and that it is either for a reason falling with section 98(2) or for some other substantial reason of a kind such as to justify the dismissal of the employee. The respondent asserts that the claimant was dismissed by reason of the claimant’s capability. Dismissal for capability is a potentially fair reason falling within section 98(2). The Tribunal will make a finding about the real or principal reason for dismissal on the available evidence.[54]Where the employer has shown a reason for the dismissal and that it is for a potentially fair reason, section 98(4) of the Employment Rights Act 1996 states that the determination of the question whether the dismissal was fair or unfair 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 must be determined in accordance with the equity and substantial merits of the case.[55]When assessing capability, an employer is entitled to set the levels of performance which it requires from its employees even if that performance is at a higher level to those expected from comparable employers in comparable workplaces (Fletcher v St Leonard’s School EAT 25/87). It is important for the Tribunal to be satisfied that the employee could be reasonably expected to know about the levels of performance required (Plessey Military Communications Ltd v Brough EAT 518/84; Burns v Turboflex Ltd EAT 377/96). An employer may dismiss for capability where there is a series of small but persistent errors, even if those errors were not, on their own, serious enough to warrant sanction (Miller v Executors of John C Graham [1978] IRLR 309 EAT).[56]For a capability dismissal to be fair, the employer must hold a genuine belief that the employee is incompetent or unsuitable for the role, formed after a reasonable investigation (Alidair Ltd v Taylor [1978] ICR 445 CA). This necessitates it producing evidence which shows poor performance and that this was the real reason for dismissing the employee. An investigation will be ‘reasonable’ if the actions of the employer, at each stage, fall within the 13 of 16 band of a ‘reasonable range of responses’ (Sainsburys Supermarkets v Hitt [2002] EWCA Civ 1588). This means that the decisions or actions must fall within the range of responses open to a reasonable employer in those same circumstances.[57]Ultimately, where the Alidair test is satisfied, the employer must show that the decision to dismiss also falls within the reasonable range of responses. This necessarily involves considering the training needs and history of the employee, as well as whether the possibility of redeployment to another role meant that the decision to dismiss was not reasonable in all the circumstances (Bevan Harris Ltd (t/a The Clyde Leather Co) v Gair [1981] IRLR 520 EAT). There is no requirement, though, to consider redeployment (Awojobi v London Borough of Lewisham EAT 243/16) and, of course, an employer cannot force a redeployment without also committing a Hogg v Dover College [1990] ICR 39 EAT dismissal, which would lead to unfair dismissal liability through another route.[58]The employer’s dismissal process must also be procedurally fair, keeping the employee informed, allowing accompaniment, following ACAS guidelines, allowing the employee to participate in the process, and having some regard to the principles of natural justice. Discussion and conclusion[59]The claimant’s submissions in the hearing were not focused around the legal test. In my view, he focused erroneously on perceived procedural shortcomings or alleged differences in interpretation. In my judgment, there is no force in his arguments that the 28 day deadline did not or should not apply to him. I have found as a fact that he was aware of the timescale requirements of him. It did not help him to insist on provision of the requirement in written form somewhere because it was a clearly communicated expectation prior to the PIP, and formed part of the written instruction in the PIP. It was a requirement of the respondent and he knew that, and so he is able to be measured against it.[60]Similarly, the claimant had undertaken all of the safeguarding training required by the respondent. He had explained to him in meetings what was required in terms of documentation and notes on the files. He was shown what this should look like through the provision of supervision. By his own admission, he had access to the work of others. In my judgment, the respondent has established the performance requirements to which the claimant was assessed and he should reasonably have been aware of them.[61]The claimant’s laser focus on an alleged disagreement about the word ‘undertake’ meaning to start something rather than complete something is also a red herring. The words can be synonymous when placed in context, and plainly were in this case where the claimant was explicitly told in writing that the expectation when he was to ‘undertake’ a particular task was that the task would be completed within 28 days. The level of detail in the claimant’s scrutiny in this aspect goes far beyond the law’s expectations of what an employer is able to do when acting ‘reasonably’. An employer is able to use a verb in one of its natural meanings (undertake meaning to do something entirely, as in its legal definition), especially where that is then explained in the detail behind the target containing that word is set.[62]I am also not with the claimant in respect of submissions made about being singled out, bullied, or discriminated against. I heard and saw no evidence that he was dismissed in circumstances where others had not been or would not be. I did not hear any evidence about the performance of anyone else who was in the same or sufficiently similar position. 14 of 16 There is no legal claim before me of discrimination, and so there cannot be a claim that the dismissal was caused by discrimination. There is no jurisdiction for me to consider a claim of bullying either. In short, the claimant’s arguments and questions were directed to the wrong place. The claimant did not address the key questions and arguments required by the law for me to consider, although I did attempt to focus him there. The respondent did address the legal questions.[63]Did the respondent have a genuine belief that the claimant was not capable of performing his job role? I consider that it did. It reasonably considered that the claimant was aware of the requirements. It discussed concerns with him. It gave him time to improve his performance. It measured the improvement. It considered that there was not sufficient improvement against the areas identified. There is no argument before me that the dismissal was motivated by anything else, save for the claimant’s vague and unsubstantiated inklings that there was some other cause (based on his belief his performance was satisfactory).[64]Was that genuine belief formed following a reasonable investigation, where that investigation was at each step falling within the range of reasonable responses? I consider that it was. The respondent operated a robust 3 stage investigation process. The claimant was assessed over 3 periods. At the beginning and end of each period, the claimant’s progress against clearly written objectives were discussed. He was able to feed into and shape those discussions. The investigation was conducted by the claimant’s managers, who knew his work and the expectations of the team. They were supported by specialist HR advisers. The work measured was the claimant’s own work, which he had full control over. He therefore had control over the very matters the respondent was investigating. I have no criticism at all of the respondent’s investigation process. Even if I did, it would not be fatal to the respondent’s case. I am considering what is ‘reasonable’. Very often, I do not consider that a reasonable response is one that I personally would have done, but accept that that response is one of a number which would be ‘reasonable’.[65]Having formed a genuine belief after a reasonable investigation, was the decision to dismiss within the band of reasonable responses? I consider that it was. The claimant was given many opportunities to significantly improve over several months. He was given feedback in meetings, which it does not appear he accepted when he was given it. His performance did not improve. He had already completed the training required to perform the role. He had already completed additional training to improve performance following prior concerns. The respondent considered that the claimant’s practice carried risks to the service users and to the respondent. It was entitled to form that view, reasonably, whether or not there were outside complaints. The claimant never said he would apply for redeployment and the respondent was unable to force that. The claimant indicated he would like to apply for secondment, but that is not the same as redeployment. Even if secondment was open to the claimant’s team (it was not), his core employment terms and role would remain and the same performance management would consequently apply.[66]In those circumstances, faced with an employee who had not improved over a long time, had done additional training already, did not seem to accept shortcomings, and who was reasonably perceived to pose a risk in a very important statutory role involving vulnerable service users and safeguarding, it must have been within the range of reasonable responses to dismiss the claimant. In my judgment, the respondent was fairly able to decide to dismiss the claimant and it did so. 15 of 16[67]I see no procedural unfairness in any of the procedure used by the respondent. Again, in my view, there are no criticisms I can make of it. The claimant was informed and represented at each stage. He was able to take part. He was able to shape the outcome of each stage. Different managers dealt with different parts of the process. The claimant was able to appeal the decision to dismiss and did so. The appeal dealt with his narrow grounds of appeal in a way which was fair and reasonable. I consider that the claimant’s contention that the decision to dismiss him was made before the hearing, as indicated by removal of his IT access, is misconceived. The respondent removed his e-mail access as a result of his suspension. It was a delayed action in response to suspension, not a premature action in response to dismissal.[68]It follows that the claimant’s claim for unfair dismissal is not well-founded. Consequently, it is dismissed.