Miss C Johnson v 92 Higher Drive Ltd T/a Highfield House: 2303347/2024
EMPLOYMENT TRIBUNALS
Case No 2303347/2024
Between
Miss C JohnsonClaimant92 Higher Drive Ltd T/a Highfield HouseRespondent
Before
Employment Judge HallenIn person for claimantMr. T. Welch- Counsel for respondentDate 10 February 2025
JUDGMENT
The Claimants claims for unfair dismissal and wrongful dismissal are unfounded and are dismissed.
REASONS
Issues
[1]The Claimant was employed as a Care Assistant by the Respondent between 16 May 2018 and 26 March 2024, at which time she was dismissed by reason of gross misconduct.[2]In her Claim Form dated 9 May 2024, she said that she was unfairly and wrongfully dismissed by the Respondent. The Respondent in its Response Form disputed that the Claimant was unfairly and wrongfully dismissed. At the hearing, the Respondent cited that the dismissal was by reason of gross misconduct and that it was a fair dismissal. In respect of the wrongful dismissal claim, the Respondent submitted that the Claimant was in repudiatory breach of contract and the company was entitled to dismiss the Claimant without notice or a payment in lieu of notice.[3]The issues for the Tribunal in respect of the unfair dismissal claim were firstly to determine what the reason for dismissal was and whether it was by reason of conduct as asserted by the Respondent. Thereafter, the Tribunal had to ascertain whether the Respondent acted reasonably in all the circumstances in dismissing the Claimant and in particular: -(i) Did the Respondent believe that the Claimant had committed the acts of conduct relied on?(ii) Had the Respondent reasonable grounds for that belief?(iii) Had the Respondent conducted such investigation as was reasonable in all the circumstances of the case?(iv) Was dismissal within the range of reasonable responses open to a reasonable employer?[4]In respect of wrongful dismissal, a dismissal without notice would be a breach of contract unless the employer can show that the employee was dismissed for a prior repudiation of contract. I would have to determine if the conduct of the Claimant amounted to a repudiatory breach of contract based on the evidence available to the Respondent at the time of dismissal.[5]I had an agreed bundle of documents in front of me made up of 207 pages. The Respondent did not call the dismissing officer, Ms Danielle St Croix, Clinical Service Manager, as she had left its employ. However, it referred me to her witness statement, the rationale for the dismissal of the Claimant in the bundle and the letter of dismissal drafted by her to explain the reasons that she dismissed the Claimant. The Respondent called Ms Laura Order, Human Resources Business Partner who was a witness to the incident that led to the Claimant’s dismissal and was able to comment on the process and procedure adopted to dismiss the Claimant. The Claimant did not appeal against her dismissal, so the Respondent did not need to call the appeal officer to give evidence. The Claimant gave evidence and called a witness, Ms Nacaske Campbell to give evidence. All of these witnesses prepared written witness statements and were subject to cross examination. The Claimant attended in person having presented a witness statement herself and she was also subject to cross examination. At the end of the hearing, I reserved my judgment and confirmed to the parties that I had to give thought to my decision.
Facts
[6]The Claimant worked as a Care Assistant for the Respondent between 16 May 2018 until her summary dismissal for gross misconduct on 26 March 2024 which was the effective date of dismissal.[7]The Fairlie Healthcare Group (the Group), of which the Respondent is part, provides nursing care to people living with complex neurological conditions. It operates across three centres in West Norwood, Lambeth (owned and operated by Fairlie Healthcare Ltd, opened 1999, known as Fairlie House), Purley, Surrey (owned and operated by 92 Higher Drive Ltd, opened 2011, known as Highfield House) and Banstead, Surrey (owned and operated by Woodstown Healthcare Ltd, opened 2021, known as Woodstown House) and employs approximately 500 staff. The Claimant worked at Highfield House in Purley. Residents of the Fairlie Healthcare Group’s nursing homes are mostly referred from Integrated Care Boards under the NHS Continuing Healthcare Scheme.[8]Patients residing at any of the Fairlie Healthcare centres are adults living with complex neurological conditions and, often, have long-term nursing needs, including those requiring ventilator support and tracheostomies and perhaps in altered states of consciousness. The Respondent’s nursing care and therapy services are individually tailored to the needs of each patient at the centre, in line with the Group’s six core values of dignity, privacy, choice, independence, rights and fulfilment. The Claimant in evidence confirmed that she was conversant and understood the six core values. The Respondent’s patients are extremely vulnerable adults, who each have specific needs as detailed in their care plans. The Respondent’s centres are its patients’ homes, and as such the Respondent is expected to provide a safe, peaceful and respectful environment, one that is free of stress or threat.[9]The Claimant was provided with training in her induction programme and understood how vulnerable the Respondent’s patients were, how to communicate patiently and respectfully and how important it was that the centres were safe and peaceful environments. She understood that it was important because not respecting those guidelines created a significant risk for the patients in the employee’s care. Should any patient feel threatened or become stressed, their condition could worsen quickly, become an emergency situation, and potentially lead to their death.[10]In addition to induction, every Care Assistant was expected to achieve the standards defined by the Care Certificate. This was implemented at the Respondent in 2023. The Care Certificate was an agreed set of national standards that defined the knowledge, skills and behaviours expected of specific job roles in the Health and Social Care sectors. It was made up of the 15 minimum standards that covered various roles in Health and Social Care, including the Care Assistant role. Those standards included understanding the role, a duty of care, working in a person-centred way, communication, privacy and dignity, and safeguarding adults. The Respondent expected its carers to apply those standards when caring for vulnerable adults in its centres. Those expectations were at the centre of the employment relationship.[11]The Claimant joined the Respondent on 16 May 2018 as a Care Assistant and attended a full induction programme, which included all mandatory training. The Claimant then attended her annual mandatory training every year, including Core Values and Values Framework (last attended on 15 August 2023), and Safeguarding of Vulnerable Adults (last attended on 22 August 2023). Prior to the termination of her employment, the Claimant worked on the Lower Ground Floor at Highfield House.[12]On 31 January 2024, the Claimant completed her Care Certificate. In her Care Certificate workbook, the Claimant stated that she understood the need to ensure in relation to patients that ‘the support [she] provides meets the individual needs and preferences or upholds their dignity and human rights’, that their ‘safety and welfare is protected’. The Claimant stated that she understood that the service user had a ‘right to be treated as an individual’. The Claimant also stated that she understood person centred care as ‘focusing on the needs of individuals’ and ‘providing care that is respectful of and responsive to them’, and how important it was to ‘respect their personal space’, ‘provide a barrier free environment' and ‘stress-free care routines’. The Claimant, in her Care Certificate Workbook, also acknowledged that, as a carer, it was essential to be observant and notice when a patient became ‘confused, angry, upset, stressed or 'anxious’, so that they can take action to remove the source of their stress.[13]On 20 February 2024, several members of staff, including the Claimant, were involved in incident on the Lower Ground Floor of Highfield House. Some members of staff including the Claimant, were not satisfied with the patient allocation that day. Patient allocation was a task carried out by the nurse in charge, who allocated staff to patients based on patient needs and staff available. Care Assistants were all aware that they were expected to follow the instructions of the nurse in charge regarding allocation. The Claimant was one of the Care Assistants involved in that incident, and she was witnessed by Mr BP, Director of Clinical Services, changing the allocation directly on the sheet, overriding the nurse’s instruction, and shouting at the nurse in charge and at the Ward Manager about her patient allocation that day. This disrupted the floor and patient safety and threatened the wellbeing of patients. Following the investigation into this incident, a Care Assistant was dismissed, and the Claimant received a verbal warning for her actions on that day. At the hearing, the Claimant acknowledged receiving the verbal warning that was sent to her by email dated 23 February 2024 from Ms Order. However, she did not give me a clear answer as to the date that she received it. I was satisfied that she did receive it on the date that it was sent and that she was aware of why it had been issued. Furthermore, I was satisfied that this reminded the Claimant of the Respondent’s core values that are specified above.[14]One week after receiving the verbal warning, on 27 February 2024, around 6:45pm, Ms Laura Order (Human Resources Business Partner) and Ms Leslie Kosovsky (Director of Human Resources and People), heard continuous loud shouting on the Lower Ground Floor of Highfield House. They found the Claimant shouting on the Centre’s handsfree landline phone inside a patient’s room. Ms IW (Senior Staff Nurse), who was the Nurse in Charge of the floor, also arrived after hearing the loud shouting. Ms IW commented in her investigation statement that the Claimant’s shouting was ‘very loud’ and that she heard her from her station, which was about 20 metres away. At the hearing, the Claimant suggested that the shouting was not very loud. I did not accept this evidence. I find that she was shouting down the phone loudly because Ms IW, Ms Order and Ms Kosovsky could hear her from some distance away.[15]When the Claimant saw Ms Order and Ms Kosovsky approaching the patient’s bedroom, she shut the door from the inside, as the patient sat in her bed, whilst continuing to shout loudly on the phone. Ms Order opened the door and asked the Claimant to follow her and Ms Kosovsky to the Therapy room further down the corridor. The Claimant complied, whilst still shouting on the phone. At the hearing, the Claimant said that she did not shut the door to these two officers of the Respondent. On balance, I find that she did so and continued shouting down the phone whilst so doing. Both Ms Order and Ms Kosovsky said in their investigation statements that the Claimant shut the door, and I prefer their evidence over that of the Claimant who on her own admission said that due to stress she did not remember much about this incident. Ms Order asked Ms IW to check on the patient, who looked scared and upset. The Claimant suggested at the hearing that the patient was not scared and upset because of her shouting in the room. I find that the evidence of Ms Order and Ms IW as set out in their investigation statements that the patient was scared and upset to be persuasive as the Claimant could not know this as she was busy on the phone.[16]The Claimant continued her telephone conversation from the Therapy room, in front of Ms Order and Ms Kosovsky, for another few minutes. Once she had hung up the phone, the Claimant explained that her daughter had gone missing and that she had been extremely worried. She also confirmed that when she was having the phone conversation the police confirmed that her daughter had been found, and her conversation was also with her daughter’s sitter, Ms Campbell who gave evidence at the hearing. Ms Order sent the Claimant home, asking her not to come for her shift the next day. Ms Order ensured Ms IW arranged cover for the Claimant’s shift the next day. Ms Order then apologised to the patient, who although had had a stroke, was able to communicate verbally and through body language. She was upset and stated that ‘it was loud’ ‘in my bedroom’. Ms IW commented in her investigation statement that the Claimant’s shouting caused the patient ‘trauma’.[17]Later that evening, the Claimant wrote a note to Ms Order regarding her conduct in which she acknowledged that her shouting was ‘unacceptable’ and for which she apologised. She reiterated the context in which it had happened repeating that she was very upset upon being told by Ms Campbell that her daughter was missing.[18]The Respondent wrote to the Claimant on 28 February 2024 to inform her that she would be suspended on full pay whilst the incident was investigated by the investigating officer, Ms MH (Ward Manager), as it was deemed that the Claimant’s actions could be found to constitute gross misconduct under the Respondent’s disciplinary policy, by demonstrating disorderly conduct on the Respondent‘s premises whilst working or otherwise and causing harm to a vulnerable adult (whether verbal, physical or financial). The Claimant confirmed at the hearing before me that she was aware that such conduct if found proven could amount to gross misconduct as it was contrary to the Respondent's core values.[19]On 13 March 2024, a letter was sent to the Claimant to invite her to a disciplinary hearing. The letter set out the allegations clearly, provided all the supporting statements and gave the Claimant the right to be accompanied. The Claimant arranged for a colleague to attend the meeting but at the last minute the colleague could not attend. The Claimant was offered the chance of a postponement of the disciplinary hearing but chose to proceed without her colleague being present.[20]The disciplinary hearing took place on 18 March 2024, and was heard by Ms Danielle St Croix (Clinical Services Manager). The Claimant was asked to recall the incident on 27 February 2024 and describe it in detail. The Claimant explained that she received a phone call whilst on duty and was handed the handset by a member of staff. The Claimant stated that she went into a patient's bedroom to wash her hands and accepted the handset from the member of staff from inside the patient’s bedroom. The Claimant also confirmed that she did not speak to the patient at all when entering her bedroom to wash her hands. The Claimant explained that the person on the phone was her four-year old child’s sitter, (Ms Campbell) who informed the Claimant that her child was missing. The Claimant explained that she started shouting then and was in a state of shock, which meant that she did not remember the rest of the incident clearly.[21]Ms St Croix found that the Claimant had committed gross misconduct, and that the misconduct was serious enough to warrant dismissal. The mitigating circumstance around the fact that the Claimant’s daughter was missing was taken into consideration. However Ms St Croix found that: 1. Entering a resident’s room without knocking and asking for permission was an invasion of privacy and not in line with the Respondent’s core values of respecting a resident’s personal space; 2. Answering the phone in a resident's room was inappropriate, invaded their privacy, and again was not in line with the Respondent’s core values of putting the patient first. 3. When the Claimant was approached to leave the resident’s room, she closed the door and continued to shout on the phone. Although there was a mitigating circumstance around the phone call, there was no attempt made by the Claimant to leave the patient’s room once she knew what the call was about. The Claimant then proceeded to ignore instructions from the nurse in charge, IW, Human Resources Business Partner, L Order and Director of Human Resources and People, Ms L Kosovsky when she was approached to leave the room. Due to the decisions made by the Claimant, it was concluded by the dismissing officer that the resident was put in distress as she did not understand what was happening and could just hear and see the Claimant shouting on the phone and closing the bedroom door. Ms St Croix also concluded that the resident witnessed this behaviour and became distressed during the incident, when it could have been avoided had the Claimant followed the Respondent’s processes and procedures by simply leaving the patient’s room. Therefore, the Claimant was dismissed for gross misconduct without notice. She was notified of this fact in wring on 26 March 2024 and informed of her right of appeal.[22]The Claimant was given the opportunity to appeal, however she decided not to exercise that right. She was aware that the appeal would be conducted by an independent officer who had no prior knowledge of the matter.
Law
[23]Section 98(1) ERA provides that it is for the employer to show the reason or principal reason for dismissal of the employee and 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. If the Respondent fails to do so the dismissal will be unfair.[24]If the Tribunal decides that the reason for dismissal of the employee is a reason falling within Section 98(1) or (2) ERA, it will consider whether the dismissal was fair or unfair within the meaning of Section 98(4) ERA. The burden of proof in considering Section 98(4) is neutral.[25]Section 98(4) ERA provides: - “the determination of the question whether the dismissal is fair or unfair (having regards 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.”[26]In the case of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT, guidance was given that the function of the Employment Tribunal was to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair. If the dismissal falls outside the band, it is unfair.[27]In the case of Sainsburys Supermarket Ltd v Hitt [2003] IRLR 23CA, guidance was given that the band of reasonable responses applies to both the procedures adopted by the employer and the sanction, or penalty of the dismissal.[28]The Tribunal should not substitute its own factual findings about events giving rise to the dismissal for those of the dismissing officer (London Ambulance NHS Trust v Small [2009] IRLR 563).[29]In the case of British Home Stores v Burchell [1978] IRLR 379 EAT, guidance was given that, in a case where an employee is dismissed because the employer suspects or believed that he has committed an act of misconduct, in determining whether the dismissal was unfair, an Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of misconduct in question and obtained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time. This involved three elements. First, there must be established by the employer the fact of that belief, that the employer did believe it. Second, it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage on which he formed that belief on those ground, must have carried out as much investigation into the matter as was reasonable in all of the circumstances of the case.[30]In respect of wrongful dismissal, a dismissal without notice will be a breach of contract unless the employer can show that the employee was dismissed for a prior repudiation of contract or, a prior unaffirmed repudiatory act where the act was unknown at the time of dismissal: Williams v Leeds United Football Club [2015] EWHC 376 (QB), [2015] IRLR 383.[31]A repudiatory breach is a breach which is serious and fundamental to the contract. Richards v IP Solutions Group Ltd [2016] EWHC 1835 (QB), [2017] IRLR 133[34]-[37] provides a helpful summary of the principles for determining whether a repudiatory breach has occurred:(a) What amounts to gross misconduct will vary according to the nature of the employment and the circumstances.(b) Gross misconduct will be found where the relationship of trust and confidence is wholly undermined, such that the act justifies repudiation.(c) Summary dismissal is an exceptional step to take. In Richards, this threshold was inferred into the words “material breach” within a service agreement which made summary dismissal subject to such breaches. The Tribunal’s Findings[32]The facts of this case are relatively straightforward and for the most part not in dispute. The Claimant confirmed that she received training and was aware of the Respondent’s six core values of dignity, privacy, choice, independence, rights and fulfilment. She was aware that the Respondent’s patients were extremely vulnerable adults, who each had specific needs as detailed in their care plans. She was aware that the Respondent’s centres (one of which she worked in) were its patients’ homes, and as such the Respondent was expected to provide a safe, peaceful and respectful environment, one that is free of stress or threat for the patients. She was aware that a breach of the six core values could lead to disciplinary action and that a serious breach of the values could lead to dismissal for gross misconduct. Indeed, whilst she disputed receiving a verbal warning on 23 February for a breach of the core values, I found that she indeed did receive this warning just under a week before her suspension for the incident on 27 February 2024. As a consequence, it was clear to me that she was aware that a breach of the six core values was a serious matter as she herself apologised in writing for her conduct in respect of the incident on 27 February acknowledging that her shouting in the patient’s room was ‘unacceptable.’ This occurred well before her dismissal.[33]In relation to the incident on 27 February 2024, she accepted that it had occurred, that she was extremely stressed during the telephone call, did not remember much of the details of what was going on at the time, was in the patient’s room whilst taking the call with the patient in it, had not obtained the patient’s permission to take the call in the room, had continued to talk loudly on the phone whilst the patient was in the room, had made no effort to leave the room and during the call did not check how the patient was reacting to the disturbance that the patient was witnessing. Whilst she did not accept that she has shut the door on the company’s officers trying to remove her from the patient’s room, I found that I preferred the evidence of the Respondent’s witnesses that she had indeed closed the door on them to prevent access to the patient’s room albeit only temporarily. All of these relevant facts outlined by me above were for the most part accepted by the Claimant at the disciplinary hearing and at the tribunal hearing before me.[34]On the basis of the about factual matrix, I find that both the Claimant’s claims for unfair dismissal and wrongful dismissal are unfounded and are dismissed.[35]I shall deal with the claim for unfair dismissal first. I have to consider the test as set out section 98 of the employment rights act 1996. I have to consider firstly whether the Respondent dismissed the Claimant for a potentially fair reason. If so, I have to consider, whether the Claimant was dismissed fairly in consequence of that dismissal depending upon the Respondent’s size and administrative resources. In other words, I have to find whether the Claimant’s dismissal was within a band of reasonable responses open to a reasonable employer and was fair in all the circumstances.[36]The two-stage test set out in section 98 has been clarified by the guidance in Burchell and I have ask more specific questions to ascertain the fairness of the dismissal as follows:(a) Did the Respondent believe that the Claimant was guilty of misconduct?(b) Did the Respondent have in mind reasonable grounds upon which to sustain that belief?(c) Did the Respondent carry out as much investigation as was reasonable in the circumstances?[37]In respect of the first question namely whether the Respondent had a fair reason for dismissal, I find that the genuine reason for dismissal was the Claimant's conduct. Indeed, the Claimant did not challenge that this was the genuine reason as the Claimant did not say before me that the reason was not misconduct. Furthermore, her apology to the Respondent on 27 February 2024 on the evening of the incident indicated that she was aware that misconduct was the reason for her dismissal. Therefore, I find that the reason for dismissal was conduct in this case.[38]Moving on to the question of fairness and whether the Respondent had reasonable grounds for believing that the Claimant was guilty of misconduct having carried out as much investigation as was reasonable in the circumstances. I find that in this case, the Respondent undertook a reasonable investigation into the conduct in question and considered the matter at a fairly constituted disciplinary hearing. The Claimant was suspended on full pay between 28 February and 18 March and notified of this in writing. She was invited to a disciplinary meeting in accordance with the Respondent’s disciplinary procedure by letter dated 13 March 2024 that she received the following day. She was provided with the statements of Ms L. Order, Ms L, Kosovsky, Ms IW and with her own statement. She was notified of her right to be accompanied to the disciplinary meeting.[39]At the disciplinary hearing, the Claimant was given an opportunity to respond to the allegations against her after she had been provided with all of the relevant witness statements. I find that the dismissing officer weighed up all of the relevant evidence as well as the Respondent’s own disciplinary procedure which stated that disorderly conduct on Company premises whilst working amounted to gross misconduct. She considered the Claimant’s good work record and weighed this against the evidence obtained by the Respondent during the investigation. Most importantly, she considered the circumstances of the call and the stress placed upon the Claimant at the time. She still came to the conclusion that the Claimant as an experienced Care Worker made no attempt to leave the room once she knew what the call was about and ignored instructions from the Nurse in charge, HR business partner and Director of HR and people when she was approached to leave the room. The dismissing officer’s main concerns were that the Claimant’s entering the resident’s room without knocking and asking for permission was an invasion of privacy and not in line with our core values of maintaining privacy in a resident’s personal space. In addition, answering a phone in the resident’s room was inappropriate and again not in line with our core values with putting the patient first and invading their privacy.[40]After weighing up the evidence, I find that the dismissing officer imposed a penalty that was within the band of reasonable penalties open to her. I am conscious that my job is not to step into the shoes of the employer or substitute my own opinion. Rather it is for me to determine whether based upon the evidence before this employer in respect of this investigation, the employer imposed a penalty that was open to it after considering all of the relevant evidence. In my view, the penalty imposed in this case, which was summary dismissal for gross misconduct fell within that reasonable range. It maybe that other employers may have imposed a final written warning in this case but nonetheless, I find that dismissal for gross misconduct in this case was within the band of reasonable penalties. It was clear to me that the dismissing officer did weigh up the extreme stress that the Claimant was under when she was told her daughter was missing. However, her conclusion was that the Claimant as an experienced Care Worker conversant with the Respondent’s core values, was under a duty to leave the room and take the call where the Respondent’s patient did not have his/her rights violated. This is especially so as the Claimant had received a written warning just under a week before the incident that led to her dismissal for a violation of the core values.[41]The Claimant at the hearing raised a number of procedural irregularities in respect of her dismissal. Firstly, she said that the Respondent failed to follow a fair procedure in that it did not provide her with a regular update or information that it should have provided her with so that she was not aware of all the Respondent’s concerns. I find that this was not the case. The Respondent suspended her on full pay on 28 February and provided her with full particulars of the allegations against her along with the evidence supporting the allegations by letter dated 13 March 2024 which she received on 14 March 2024. There was not an inordinate delay in the disciplinary hearing taking place on Monday 18 March 2024. I find that the Claimant was aware of the matters that concerned the Respondent and was able to respond to them at the disciplinary hearing.[42]The Claimant also asserted that she was not given sufficient time to organise a representative and that the representative was not able to attend at the disciplinary hearing. I find that there was no substance in this assertion, as the Claimant herself had arranged a representative to represent her but at the last moment the representative could not be at the disciplinary hearing. The Respondent was prepared to adjourn the disciplinary hearing if the Claimant wished to be represented but the Claimant chose to proceed with the disciplinary hearing. I also note that she was given the opportunity of appealing against her dismissal, but she chose not to do so even though the appeal would have been conducted by an independent appeal officer having no prior involvement in the matter.[43]Turning to the claim for wrongful dismissal, I had to find whether the conduct of the Claimant amounted to a repudiatory breach of contract under her contract of employment. I am satisfied that the Claimant was aware of the Respondent’s core values, that despite this, she continued to violate the patient’s dignity and privacy whilst taking the call in the patient’s room, did not take the patient’s views or concerns into account and disturbed the vulnerable patient’s peace and quiet. In the circumstances, I find that she was guilty of a repudiatory breach of contract. Accordingly, the Respondent was entitled to terminate her employment summarily without notice or a payment in lieu of notice.