Employment Judge AM BuchananMr D Flood (instructed by Counsel) for claimantMr N Grundy (instructed by Counsel) for respondentDate 30 March 2021
JUDGMENT
[1]The claim of ordinary unfair dismissal advanced pursuant to sections 94/98 of the Employment Rights Act 1996 (“the 1996 Act”) is well founded and the claimant is entitled to a remedy.[2]There will be a reduction of 60% from any compensatory award for unfair dismissal to which the claimant is entitled under the doctrine in Polkey -v- A E Dayton Services Limited 1988.[3]There will be a reduction of 75% from any compensatory award to which the claimant is entitled to reflect her contributory conduct which led to her dismissal. The question of any deduction for contributory conduct from any basic award for unfair dismissal to which the claimant may be entitled will be determined at the remedy hearing.[4]The claim of wrongful dismissal advanced pursuant to Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (“the 1994 Order”) is dismissed.[5]The claim of unpaid holiday pay is dismissed on withdrawal by the claimant.[6]The claim of failure to allow the claimant to be accompanied at a disciplinary hearing pursuant to section 11 of the Employment Relations Act 1999 (“the 1999 Act”) is adjourned generally.[7]A remedy hearing will take place at the Manchester Employment Tribunal on Wednesday 7 April 2021.
REASONS
[1]By a claim form filed on 26 April 2019 the claimant brings various claims before me. First, a claim for unfair dismissal pursuant to sections 94/98 of the 1996 Act. Secondly, a claim of wrongful dismissal in respect of notice pay relying on the provisions of Article 3 of the 1994 Order. Thirdly, a claim of unpaid holiday pay and finally a claim of failure to allow the claimant to be accompanied to a disciplinary hearing pursuant to section 11 of the 1999 Act. The claim form was supported by an early conciliation certificate on which Day A was shown as 1 March 2019 and Day B 28 March 2019. There are no time issues in relation to this matter.[2]On 2 July 2019 the respondent filed a form of response in which it denied all liability. The time for filing the response was extended by the Tribunal by a letter dated 3 June 2019 until 2 July 2019.[3]Standard directions were issued, and the matter was listed to be heard on 20 September 2019. At the request of the parties that hearing was postponed and re-listed for 5 and 6 December 2019. The parties made a joint application to vacate those dates and to re-list for five days given the number of witnesses and documents to be heard and considered. The case was therefore re-listed for 22-26 February 2021 and came before me on those dates.[4]An application was made by the respondent for various orders to be issued under the provisions of Rule 50 of Schedule I of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. The Tribunal determined that those matters should be considered at a private preliminary hearing in person. That hearing came before Employment Judge Ainscough on 12 November 2019. The result of that hearing was confirmed in an Order dated and sent to the parties on 4 December 2019 in which anonymisation of the parties and various witnesses and other matters was provided for and also a restricted reporting order was made to ensure that the names of the parties and the name and location of the home at which the parties worked (“the Home”) and the identity of the governing local authority were not to be reported. An application for the final hearing to be in private was refused. The basis of the Orders was to protect the identity and right to privacy of the residents of the Home - which is a home for vulnerable young people. The hearing was conducted in accordance with that order and this Judgment reflects the provisions of the Anonymisation Order and the Restricted Reporting Order (“the Orders”) which were signed on 16 January 2020 and sent to the parties on 28 January 2020. In this judgment, any relevant character in the narrative not protected by the Orders is named once and thereafter referred to by initials. I have moved away from the letters “A” and “B” and refer to the claimant as “J” and the respondent as “K”.[5]At the outset of the hearing, counsel for the claimant sought leave to adduce a supplemental witness statement (“the Statement”) from the claimant to deal with her response to the allegations which she had faced whilst employed by the respondent and which had led to her dismissal. The Statement contained 57 paragraphs over 12 pages. The respondent objected to the admission of the Statement. I took time to consider. I determined that it was right on balance to admit the Statement which served to bring together the claimant’s evidence on matters of central importance to the various claims advanced and which were bound to be the subject of cross examination. I decided that any unfairness to the respondent in so doing could be properly dealt with by adjourning the case at around 12 noon on the first day of the hearing to enable full instructions to be taken on the Statement, by allowing the respondent to ask supplemental questions of its witnesses when they came to give evidence and by indicating that the respondent could, if it wished, seek to apply to recover its costs occasioned by the late admission of the Statement – without giving any indication at all as to whether any such application would be successful. Witnesses[6]In the course of the hearing, I heard from three witnesses for the respondent namely:6.1 The dismissing officer (“SS”),6.2 The appeal officer (“RCEO”) and6.3 Jeanette Swift (“JS”) – a service manager employed by the respondent who was the line manager of the claimant.6.4 In addition I had before me a statement from the Head of Human Resources (“HR”) for the respondent. This witness was not called. I read her statement but where conflict arises with the evidence from witnesses who were called before me, I generally prefer the testimony from the witnesses who were called and cross examined.[7]In addition for the claimant I heard from:7.1 The claimant.7.2 The claimant’s sister who had supported her at the appeal hearing.7.3 Caroline Mathers (“CM”) a former colleague of the claimant who managed a home close to the Home. Documents[8]I had a bundle before me which extended to over 517 pages. Any reference in these reasons to a page number is a reference to the corresponding page within that agreed trial bundle.
The Issues
[9]The issues in this matter were identified at the outset of the hearing as follows: The claim of ordinary unfair dismissal: sections 94/98 of the 1996 Act. 9.1 Does the respondent establish the reason for the dismissal of the claimant as being related to her conduct and thus falling within section 94(2)(b) of the 1996 Act?
Findings of fact
[10]Having listened to the evidence and the way in which that evidence was given and having considered the documents to which I was referred on the balance of probabilities I make the following findings of fact: General findings10.1 The claimant was born on 3 December 1971. She began work for the respondent company on 18 April 2008 and by 2016 had risen to become a registered care home manager. The claimant was summarily dismissed on 7 January 2019. The home (“the Home”) at which the claimant was manager was for four female young people aged between 11 and 17. The claimant was line managed at the relevant time by JS in her capacity as Service Manager. In that role, JS was responsible for several homes in her region. In turn, JS was managed by the regional director for the region in which the homes were situated. In this case the relevant regional director was SS. In turn, SS was answerable to RCEO.10.2 The respondent company operates 38 homes. These homes offer a range of services including specialist therapeutic services and care for young people with emotional and behavioural difficulties. The respondent offers homes for young people aged between 11 and 17 and also has specialist provision catering for younger children aged between 8 and 11 years. The young people who live in the homes operated by the respondent are some of the most vulnerable young people in the country. Young people are placed in the homes by various local authorities which are individually known in relation to each young person as “the Commissioner” given that the authority commissions the respondent to provide care for a young person who generally will have been placed in the care of the local authority by a court. A young person can only be removed from a home, once accepted, at the request of the relevant local authority or, if necessary but exceptionally, at the request of the respondent. If the request emanates from the respondent, it needs to be approved by the relevant service manager and by the head of service for the region in which the home is situated. The respondent is regulated by OFSTED in relation to the running of its homes. The respondent company’s annual turnover is in the region of £24m.10.3 To ensure the managers of the various homes and other employees know what is expected of them, the respondent has various policies in place. These policies include a Dignity at Work Policy (pages 34-36) and a Code of Conduct Policy (pages 70-82). The respondent also has its own disciplinary policy (pages 63-69). I have considered these policies and make further reference to them below where relevant.10.4 In the Dignity at Work Policy, at section 3.2, bullying is described as “offensive, intimidating, malicious or insulting behaviour and/or an abuse or misuse of power that is meant to undermine, humiliate or injure the person on the receiving end”. In the Code of Conduct the duties expected of employees towards the children in the care of the respondent are set out. Section 4 of that policy states at paragraph 4.1 “All…. employees are accountable for the way in which they exercise authority, manage risk, use resources and protect children and young people from sexual, physical and emotional harm. Children have a right to be treated with dignity and respect”. The code makes it plain that employees must always act and be seen to act in the best interests of a child in the care of the respondent. The code also sets out guidance on the exercise of professional RESERVED JUDGMENT Case Number: 2404985/2019 judgement and makes it plain that, when dealing with circumstances where the code provides no specific guidance, the overriding rule or requirement is that employees “are expected to make judgements about their behaviour in order to secure the best interests and welfare of the children in our care. Such judgments, in these circumstances, should always be recorded and shared with a senior manager” (page 71).10.5 The claimant had written terms and conditions of employment (pages 83-94) and a job description in which the main purpose of her job role was said to be: “As registered manager, you will ensure that good quality care is delivered to the children and young people in the home. You will hold the registration and have overall responsibility for the home. You will have responsibility for recruitment, training, supervision, placements, care plans, audits, budgets and working with multidisciplinary teams”.10.6 The claimant had a period of absence from work from August 2017 until she began a phased return to work in December 2017. During that five-month period, the claimant’s deputy Mel Black (“MB”) acted up as manager of the Home. When the claimant returned to her duties, MB reverted to her role as deputy. There were some difficulties in the relationship between the claimant and her deputy on her return and the claimant raised these difficulties with her line manager. I infer that MB had some difficulty adjusting back to her deputy role. MB had been praised by the respondent for the way she carried out her duties during the period of the claimant’s absence and she was considered a success in the role of acting manager. MB gave notice to leave the respondent’s employment in July 2018 and left in August 2018. In the event when the claimant was dismissed in January 2019, MB was appointed by the respondent as her successor, and she remains in post to this day. Events leading to the suspension of the claimant.10.7 At a planned monthly supervision meeting between JS and SS in September 2018, JS raised, for the first time, issues in relation to the conduct of the claimant and how the claimant was not responding to her in her role as line manager. Unknown to SS at the time, there had previously been a friendly relationship between JS and the claimant, and they had socialised outside the work setting. That friendly relationship cooled somewhat in mid-2018. I infer that the difficulties in the working relationship, to which JS referred in her meeting with SS in September 2018, was in large part due to the cooling of that friendship outside the workplace. I accept the contents of paragraph 8 of the witness statement of JS as giving an accurate description of the changing relationship: “My relationship with the claimant did change to an extent. …I did question her more as I didn’t think she was handling situations very well. She became pre-occupied with how I managed her and would take no guidance or direction”.10.8 In early October 2018 a young person (“YP2”) was accepted into the Home by the respondent. The young person stayed at the Home for only some 10 days and during that 10-day period some 5 days were spent by her in hospital. The behaviour of YP2 was particularly challenging and YP2 did not get on with the other young people in the Home. The behaviour of YP2 before she was admitted to hospital had been the subject of discussion between the claimant and the representatives of the local authority culminating in an email from the claimant at 13:00 on 11 October 2018 (page 117). I infer from this message that the claimant was not happy with the prospect of YP2 remaining in the Home. Later in the day on 11 October 2018, an incident occurred when YP2 returned to RESERVED JUDGMENT Case Number: 2404985/2019 the Home from hospital and her behaviour quickly became particularly challenging. YP2 threatened another young person in the Home with violence and also the staff. The claimant challenged YP2 and YP2 absconded from the Home. The claimant liaised with representatives of the commissioning local authority who attended the Home and there was discussion as to whether YP2 was in fact suited to the Home at all. After some discussion, the decision was taken that YP2 was not suited to the Home and should be removed. The claimant understood that this decision came from the officials of the local authority. I infer from the fact that the local authority refused to pay a notice payment for YP2 that, through its officers, it believed that it was the claimant who said YP2 could not be accommodated at the Home. I am satisfied that it was the claimant’s wish to see YP2 removed no matter where responsibility for the decision lay. By 6pm on 11 October 2018, YP2 was still at large, and the police had been informed to look out for her. The claimant left the Home for the day giving an instruction that if YP2 returned she was not to be admitted. In fact, YP2 was returned to the Home by the police in the early hours of 12 October 2018 and the member of staff on duty allowed her to enter and she went up to her room – all contrary to the instruction given by the claimant. When the claimant heard of this at around 6:00am on 12 October 2018, she went to the Home (which was only a short distance from her own home) and remonstrated with the police who had brought YP2 back saying that she should not have been brought back. Confusion ensued with the police officers apologising for bringing YP2 back to what they thought was YP2’s home (as it was). The claimant instructed a member of her staff to wake up YP2 and to require her to leave and so at around 8:00am YP2 was woken up and, in some distress, was made to leave the Home with the police who then escorted her to the police station before taking her to other accommodation. This was a very unusual set of circumstances but, on any account, YP2 was badly served by the adults charged with her care on that occasion. The events of those two days eventually formed the subject matter of the second allegation raised by the respondent against the claimant in disciplinary proceedings. The claimant reported that YP2 had left the Home at the request of the local authority. The behaviour exhibited by YP2 was challenging but not unusual in the terms of the behaviour often exhibited by the young people looked after by the respondent.10.9 The claimant had liaised with JS about YP2 on 11 October 2018. The claimant told JS that she did not think YP2 was safe to be allowed to return to the Home. JS gave an instruction to the claimant that she was not to give an instruction that YP2 should be stopped from returning to the Home. On 12 October 2018 JS contacted the claimant for an update and was told that YP2 had left the Home and was on her way to other accommodation. I accept that the impression given by the claimant to JS was that that had been the decision of the local authority. In reaching this finding I have considered the contents of text messages passing between the claimant and JS at the time (pages 203- 204). I accept there were telephone conversations between the claimant and JS and I accept that in those conversations JS was attempting to calm a highly charged situation.10.10 Some days later an issue arose as to the circumstances in which YP2 had left the Home as the commissioning local authority refused to pay to the respondent fees for the period of notice which should have been given by the local authority to remove YP2 from the home. The local authority took the view that YP2 had left the Home at the request of the respondent and thus no notice pay was payable. RCEO became aware of the situation and asked SS to investigate. A meeting took place on 17 October 2018 between SS and JS and the claimant. At that meeting, the claimant stated that the local authority had agreed that YP2 should not return to the Home and took the view that the discharge of RESERVED JUDGMENT Case Number: 2404985/2019 YP2 was at the request of the local authority. SS reported back to RCEO who took the matter up with the local authority. In the event the local authority refused to make any payment for the notice period. At that stage, the respondent considered the matter closed. No disciplinary action of any kind was taken or contemplated by the respondent against the claimant at that time in respect of the circumstances in which YP2 left the Home. The record at page 107-108 details the challenging behaviour of YP2 on 11/12 October 2018.10.11 In mid-October 2018, the claimant contacted SS with complaints about the line management style of JS. SS asked the claimant if she wished to raise a formal grievance, but the claimant made it plain that she did not wish to do so in an email dated 29 October 2018 (page 133B). The claimant sent to SS a lengthy email (pages 128-131) detailing her interaction with JS, but it was not clear to SS what the issues of concern were. However, it was apparent to SS that there were working relationship difficulties and so he wrote both to JS and to the claimant suggesting that they should arrange a formal supervision meeting to explore the concerns raised. The claimant was due to go on annual leave at the end of October 2018 and return to work on Monday 12 November 2018.10.12 Shortly before the claimant went away on holiday, but before her supervision meeting with JS, the claimant had a meeting with her staff and with the manager of a nearby home CM to discuss the arrangements for the Home during the claimant’s absence. At this meeting, the claimant discussed the staff rota for the period of her absence, and it appeared from the documents produced that all shifts were covered. In fact, the claimant had said to at least one member of her staff that she would put her down to cover a shift fully knowing that that member of staff could not cover the shift in question but that she would take her name off the rota after the meeting. Arrangements were made for the Home to function during the claimant’s absence, but the claimant did not want staff from other homes coming into the Home whilst she was away. During the holiday period, it had been arranged that JS would visit the Home more frequently than usual in order to cover for the claimant’s absence and to ensure that CM had some support in the additional duties which she was undertaking.10.13 The suggested supervision meeting between the claimant and JS took place shortly before the claimant’s holiday. At that meeting, there was what JS described in her witness statement at paragraph 14 as a “frank discussion”. The claimant made it clear that she did not want staff from other homes in the Home whilst she was away. I accept that this is so because that explains the claimant’s conduct in seeking to show a fully covered rota at the meeting referred to above. I accept the evidence of JS to the effect that the claimant was confrontational and somewhat aggressive at times towards JS in the course of that meeting. However, the meeting ended on an ostensibly friendly basis with both participants agreeing to reflect during the claimant’s period of leave. JS produced a note of this meeting which took place on 30 October 2018 (pages 133F-G) which I accept was made shortly after the meeting and is an accurate account.10.14 Whilst the claimant was away on holiday and during one of her visits to the Home on 5 November 2018, JS was approached by a member of staff JM with concerns and complaints about the claimant and her conduct and behaviour as manager of the Home. I accept that the matters raised with JS were not prompted by her but came unprompted from JM.[11]On behalf of the claimant Mr Flood made oral submissions which are briefly summarised:11.1 The respondent failed to follow the standards of fairness which are necessary where allegations of gross misconduct are concerned. In particular, there must be an impartial and open-minded investigation, fair and reasonable notice to the claimant of the allegations against her, every reasonable effort must be made to ensure the claimant is able to attend a disciplinary hearing and any such hearing should be logical, impartial and balanced. That equally applies to any appeal hearing. Those central pillars of fairness have not been followed in this case.11.2 There was insufficient notice given to the claimant of the allegations against her to the extent that, even before the investigatory meeting on 20 November 2018, the claimant was already at a disadvantage. There were no typed notes produced of a four-hour investigatory hearing. After the investigatory hearing, further statements were taken but the claimant was not given the opportunity at any further meeting to make any response to them or to comment on them. The meeting on 11 December 2018 concentrated on what became allegation 4 but did not allow the claimant any opportunity to comment on the further statements relevant to allegation 3.[12]For the respondent, Mr Grundy made oral submissions which are briefly summarised:12.1 The respondent should not be subject to detailed forensic analysis of the type which might apply in a criminal investigation. There was no suggestion made that the investigating officer was not independent or had not done her job properly set out in the claim form. The claim form concentrates solely on issues of procedural irregularity and the respondent has come to meet the case advanced which does not make allegations against IO and hence she has not been called to give evidence.12.2 There was no suggestion made that IO was up to no good and the claimant indeed accepted that she had spoken to all the individuals she needed to speak to. The truth is that the claimant does not and cannot accept that she did anything wrong or made any mistakes. Her tactics throughout have been to raise procedural issues rather than matters of substance. Only at the final hour on Sunday this week in her latest witness statement was any attempt made to address the evidence which exists in support of the substantive allegations against the claimant.12.3 The claimant seeks to undermine the investigation by suggesting that, if other documents had been reviewed, matters would have been discovered of assistance to the claimant. The evidence of RCEO should be preferred as he is a very experienced practitioner, and he says it beggars belief that what the claimant says might be recorded in the documents to which she refers would in fact be recorded. There are documents clearly evidencing that the kitchen door was locked against YP1 – for example page 196.12.4 The matters raised by the claimant are relevant to any assessment under Polkey, if that point is reached. The claimant would still make allegations of conspiracy and would deny wrongdoing on her part and the Tribunal is entitled to find that the outcome would RESERVED JUDGMENT Case Number: 2404985/2019 have been the same in any event. This is also relevant to contributory fault. It is highly unlikely that all that the members of staff say was made up and there is ample evidence on which it can be safely found that the claimant acted inappropriately and contributed to her dismissal. That is especially true of allegation three and there should be 100% contribution in respect of that allegation alone.12.5 IO was as independent a person as could be found to carry out that role. She was an experienced manager. She did not find any case to answer in respect of the allegation five against the claimant which did not proceed to a hearing and thus the Report is balanced. IO does set out the evidence clearly and there was a clear case for the claimant to answer. If a step is taken back, then it is open to a reasonable employer to investigate matters as this respondent did. It is always possible to find other steps which could have been taken but what the respondent did in terms of its investigation was reasonable. Despite the absence of any typed notes, the claimant was able to give the full statement that she wanted to give on the 20 November 2018. While she may not have been able to remember all the points, the major matters of concern she could remember and did comment on. The claimant’s response throughout was that of outright denial of the allegations and allegations of conspiracy. There might have been other documents which could have been consulted, and in a perfect world would have been consulted, but what was done was reasonable. The very experienced IO did not see it as necessary to look at any further documents. The contents of the statements of CD, NC and RJ have the ring of truth to them. These were witnesses whom the claimant named as people who would support her, but they did not. NC and CD were very critical of the claimant in respect of YP1 and YP2 and there are limits to a reasonable investigation.12.6 In terms of proceeding with the disciplinary hearing, it was open to a reasonable employer to proceed given that the claimant had flown to Tenerife. It would have been possible to postpone but it was not unreasonable to proceed. The claimant was well enough to prepare grounds of appeal on the 11 January 2019 and so could have been well enough to have attended the disciplinary hearing.12.7 If there were procedural irregularities then they were cured by the offer of a rehearing on 1 March 2019 and then the rigorous rehearing which followed by RCEO. He did not do half a job, he did a full job in the rehearing and it is right to ask why did the claimant not respond to that offer of a genuine rehearing? The claimant does not say she was too unwell to attend but simply that she had lost confidence. She made the wrong choice not to attend. What else could RCEO have done other than to offer a rehearing? What he did fell within the band of a reasonable response.12.8 There were reasonable grounds for the belief of the dismissing officer and the appeal officer in the misconduct of the claimant. JS was a patently honest witness. The conspiracy allegation is fanciful. In terms of YP2 the wording of the charge is important. The charge related to not allowing YP2 back into what was her home and that was a very serious matter. As soon as the claimant found out that YP2 was back in the Home, she was made to leave. There were reasonable grounds for the dismissing officer to find that allegation proved in particular because the claimant’s only response was a denial of what had occurred.[13]The Law of Ordinary Unfair Dismissal – Section 98 Employment Rights Act 1996 (the 1996 Act)13.1 I have reminded myself of the provisions of section 98 of the 1996 Act which read: “98(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(b) that it is either a reason falling in 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) The reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed to do; (b) relates to the conduct of the employee … (4) In any other case 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 reasons 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”.13.2 I have noted the decision in British Home Stores Limited v Burchell [1978] IRLR379 and reminded myself that it is for the respondent to establish that it had a genuine belief in the misconduct of the claimant at the time of the dismissal. In answering RESERVED JUDGMENT Case Number: 2404985/2019 this question, I note that the burden of proof lies with the respondent to establish that belief on the balance of probabilities. I remind myself that the other two limbs of the Burchell test, namely reasonable grounds on which to sustain that belief and the necessity for as much investigation into the matter as was reasonable in all the circumstances of the case at the stage at which the belief was formed, go to the question of reasonableness under section 98(4) of the 1996 Act and in relation to section 98(4) matters, the burden of proof is neutral. In considering the provisions of section 98(4), I must not substitute my own views for those of the respondent but must judge those matters by reference to the objective standards of the hypothetical reasonable employer. I have noted the words of Mummery LJ in The Post Office-v- Foley and HSBC Bank plc –v- Madden 2000 EWCA Civ 3030: “In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not”.13.3 I have reminded myself of the decision in Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR23 where the Court of Appeal made it plain that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to any other procedural and substantive aspects of the decision to dismiss a person from his employment for misconduct reason.13.4 I have reminded myself of the decision in Ulsterbus Limited v Henderson [1989] IRLR251 where the Northern Ireland Court of Appeal said it was not incumbent on a reasonable employer to carry out a quasi-judicial investigation into an allegation of misconduct with a confrontation of witnesses and cross-examination of witnesses. Whilst some employers might consider that necessary or desirable an employer who fails to do so cannot be said to have acted unreasonably.13.5 I have noted the decision of A v B [2003] IRLR405 in which the Employment Appeal Tribunal reminded tribunals that in determining whether an employer has carried out such investigation as was reasonable in all the circumstances, the relevant circumstances include the gravity of the charges and the potential effect upon the employee. I have noted the guidance of Elias J: “Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus RESERVED JUDGMENT Case Number: 2404985/2019 no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”.13.6 I have noted the decision in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 and in particular the final paragraph of the judgment of Elias LJ which reads: “The second point raised by this appeal concerns the approach of employers to allegations of misconduct where, as in this case, the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other. Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of on one side or the other”.13.7 I have reminded myself of the words of Wood J in Whitbread and Co PLC –v- Mills 1988 ICR 776 where he states:- ‘It seems to us that in the context of industrial relations those appeal procedures form an important part of the process ensuring that a dismissal should seek to be fair. Secondly as Lord Bridge said in the West Midlands Co-operative Society Limited –v- Tipton 1986 ICR192 at page 202 ‘both the original and the appellate decision of the employer are necessary elements in the overall process of terminating contract of employment”. Wood J continued:- ‘If it has (ie the acts or omissions of the initial hearing) then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness of the initial hearing. If there is a rehearing de novo at first instance, the omission may be corrected but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review”.13.8 I have reminded myself of the decision of Taylor v OCS Group Limited [2006] IRLR613 and particularly noted the words of Smith L.J. at paragraph 47: “The error is avoided if ETs realise that their task is to apply the statutory test. In doing that they should consider the fairness of the whole of the disciplinary process. If they found that at an early stage, the process was defective and unfair in some way they will want to examine any subsequent proceedings with particular care. Their purpose in so doing will not be to determine whether it amounted to a re-hearing or a review but to determine whether due to the fairness or unfairness of the procedures adopted the RESERVED JUDGMENT Case Number: 2404985/2019 thoroughness or lack of it of the process and the open-mindedness (or not) of the decision maker the overall process was fair, notwithstanding any deficiencies at the early stage”.13.9 I have reminded myself of the decision of South West Trains v McDonnell [2003] EAT/0052/03/RN and in particular have noted the words of HHJ Burke at paragraph 36: “Whilst not only unfair it is incumbent on an employer conducting an investigation followed by a disciplinary hearing both to seek out and take into account information which is exculpatory as well as information which points towards guilt, it does not follow that an investigation is unfair overall because individual components of an investigation might have been dealt with differently, or were arguably unfair. Whilst, of course, an individual component on the facts of a particular case may vitiate the whole process the question which the Tribunal hearing a claim for unfair dismissal has to ask itself is: in all the circumstances was the investigation as a whole fair?”13.10 I have taken account of the decision in Strouthos –v- London Underground Limited. In that case the charge against the dismissed employee came under close scrutiny and Pill LJ commented that in criminal or disciplinary proceedings the charge against an employee should be precisely framed and that evidence should be confined to the particulars given in the charge. I have noted the guidance at paragraphs 38 and 41 of his judgment: “However, it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him. What has been considered in the cases is the general approach required in proceedings such as these. It is to be emphasised that it is wished to keep proceedings as informal as possible, but that does not, in my judgment, destroy the basic proposition that a defendant should only be found guilty of the offence with which he has been charged………it does appear to me quite basic that care must be taken with the framing of a disciplinary charge, and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited. There may, of course, be provision, as there is in other tribunals, both formal and informal, to permit amendment of a charge, provided the principles in the cases are respected. Where care has clearly been taken to frame a charge formally and put it formally to an employee, in my judgment, the normal result must be that it is only matters charged which can form the basis for a dismissal”.13.11 I remind myself also of the decision in Ladbroke Racing v Arnott 1983 IRLR 154 where it was held that a rule which specifically states that certain breaches will result in dismissal cannot meet the requirements of section 98(4) in itself. The statutory test of fairness is superimposed on the employer’s disciplinary rules which carry the penalty of dismissal. The standard of acting reasonably requires an employer to consider all the facts relevant to the nature and cause of the breach including the degree of its gravity. If therefore, an employer has a rule prohibiting a specific act for which the stated penalty is instant dismissal he does not satisfy the statutory test by imposing that penalty without regard to the facts or circumstances other than the breach itself. If that were a legitimate approach to the law, it would follow any breach of rules so framed could constitute gross misconduct warranting dismissal irrespective of the manner in which the breach occurred. In that case there was nothing to indicate that the manager who took the decision to dismiss gave any thought to the provisions of fairness. When considering sanction, previous good character and employment record is always a relevant mitigating factor.
Discussion and Conclusions
[14]I propose to deal first with the claim of unfair dismissal and then to deal with the claim of wrongful dismissal, given that different legal considerations arise in respect of each claim. Unfair dismissal claim Reason for Dismissal14.1 I have reminded myself of the legal provisions and authorities set out above and I turn to the first question for my consideration which is whether the respondent has proved the reason for the claimant’s dismissal on the balance of probabilities. In this case, the respondent asserts that the claimant was dismissed for a reason related to her conduct and thus a potentially fair reason within section 98(2) of the 1996 Act. I have considered the evidence of the dismissing officer, and also of RCEO given that he affirmed the decision to dismiss after a re-hearing of the disciplinary hearing.14.2 There are two facets of the case advanced by the claimant which require careful consideration when considering the reason for dismissal. First, the claimant says that she was the subject of a witch-hunt by staff whilst she was away on holiday and that the allegations against her were trumped up with a view to removing her from post. Linked to that and secondly, the claimant says that her dismissal was engineered in order to bring back MB into the role as manager of the Home. MB was her former deputy who had acted up for a lengthy period in 2017, whilst the claimant was away ill, and who had been considered a success in that role. The claimant alleges that MB was appointed to the role of manager of the Home before the appeal process in respect of the claimant’s dismissal had been completed. In short, the claimant alleges a conspiracy to remove her.14.3 It was at one time, as the hearing progressed, a matter of concern to me that the allegations against the claimant emerged as they did. It is clear that, from the middle of 2018, there was a poor relationship between the claimant and her line manager JS and it was concerning that the complaints against the claimant were raised to JS and at a time when the claimant was not in the workplace. I have considered if JS in some way engineered the complaints – although that was not the case advanced in cross examination. I heard from JS in evidence, and I agree with the description given by Mr Grundy during submissions that she was an impressive witness. She struck me as a truthful and straight forward witness. She did not seek to avoid questions in cross examination and, on more than one occasion, she accepted that the points made to her RESERVED JUDGMENT Case Number: 2404985/2019 by Mr Flood were fair and valid points against her. I was impressed with JS as a truthful witness, and I am satisfied that she was approached by JM with concerns about the claimant and that it was JM who asked MB and SH to contact JS with their concerns. I am satisfied that the respondent did not seek out concerns and complaints against the claimant through JS or any other person for that matter in order to dismiss the claimant. Had that been the respondent’s intention, then it could have investigated the claimant more thoroughly in mid-October 2018 in relation to YP2. The respondent limited its investigation at that time to whether or not the relevant local authority was right not to pay for the notice period in relation to YP2. If the respondent, through JS or SS or RCEO, was out to remove the claimant, it had a golden opportunity to do so at that time but did nothing.14.4 I note and accept that the claimant was replaced by MB after she was dismissed, and I accept that MB was appointed to the role before the claimant’s appeal re-hearing was complete. In those circumstances, I can understand the claimant’s concerns that the respondent’s agenda was to remove her in order to replace her with MB. That factor led me to examine the evidence from SS and from RCEO as to the reason for dismissal very carefully. I accepted the evidence from both those witnesses. They were both impressive witnesses on that point. I was entirely satisfied with their evidence as to the reason they moved to dismiss or to confirm the dismissal, as the case may be. I am satisfied from their evidence that the reason for dismissal was the misconduct of the claimant, as they deemed it to be, relating to her treatment of her staff, the treatment of YP1 and YP2 and her dealing with her line manager JS in respect of the staff rota whilst she was due to be away on annual leave. Both officers of the respondent wondered if there might be a witch hunt of sorts against the respondent. They both investigated that matter and rejected it. I accept that MB had been identified as a replacement for the claimant, but I am satisfied that that was simply commercial reality. The respondent needed someone to manage the Home and MB was an obvious candidate. This factor does not go to the reason for dismissal, but it does go to the open-mindedness or otherwise of RCEO at the appeal stage and I consider it again below.14.5 I conclude that the reason SS moved to dismiss the claimant, and the reason RCEO confirmed that decision, was because they both genuinely believed that the claimant was guilty of the misconduct alleged against her. Whilst I can understand why the claimant may have thought there were sinister reasons for her dismissal, after careful and thorough consideration, I reject the contention advanced that the claimant was the subject of a witch-hunt by present and former members of her staff, and I reject the contention that the claimant was dismissed in order to make way for MB. I conclude that the respondent has established on the balance of probabilities that the reason for dismissal related to the conduct of the claimant: this is not a case where there is evidence, as opposed to a hunch, that the reason for dismissal is other than that asserted by the respondent. Therefore, the reason for dismissal is established and I move on to consider the questions posed by section 98(4) of the 1996 Act. The questions posed by section 98(4) of the 1996 Act.14.6 I have reminded myself again that in answering the questions posed by section 98(4) of the 1996 Act I must not substitute my view for what should have been done but instead, I have to consider whether what the respondent did in terms of its investigation and its RESERVED JUDGMENT Case Number: 2404985/2019 disciplinary and appeal process fell within the band of a reasonable response open to a reasonable employer.14.7 I have considered the investigation carried out by the respondent. Was the investigation into this matter reasonable? I conclude that the Report was on the face of it a thorough document. The allegations to be investigated were set out as were the details of the allegations taken forward to the disciplinary hearing. There were 32 appendices to the Report, and it amounted to a substantial document. I did not hear from IO but there is clear evidence of an even-handed approach as she decided that the concerns which came to light in respect of the handling of petty cash within the Home should not go forward as allegations against the claimant. On a thorough examination of the Report, it appears reasonably balanced. I reject the description applied by Mr Flood to the Report as being egregiously one-sided. It was nothing of the sort.14.8 I have concerns in relation to the way the first allegation in respect of bullying of staff was framed. The ACAS Code at paragraph 9 requires an employer to give sufficient information to an employee about the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case against her. This allegation against the claimant, as framed, is unreasonably vague. Who did the claimant allegedly bully? When? How? This basic information is missing from the allegation and the claimant is left to trawl through statements from her staff to try to discern the allegations against her. That is not a reasonable way to deal with a serious allegation.14.9 The ACAS Code requires that the employee should have reasonable time to prepare for the disciplinary hearing. I conclude that the claimant was not allowed a reasonable time so to do by the respondent. The Report was delivered to the claimant on 18 December 2018, and she was originally expected to attend the disciplinary hearing two days later. That is not a reasonable time period to understand and digest such a substantial report. The respondent had taken a decision that the claimant needed to be referred to occupational health (“OH”) because of the fit note produced on 20 December 2018 and yet such a referral was not progressed at any time. I conclude that the respondent was concerned that the claimant had gone to stay with her family in Tenerife and concluded, without evidence, that if she was fit enough to fly to Tenerife, she was fit enough to attend a disciplinary hearing and was seeking to delay matters. The respondent overlooked the fact that the claimant’s family lived in Tenerife and that it had already concluded that a referral to OH was necessary. Any reasonable employer would have allowed the fit note produced by the claimant to run its course and allow the question of the fitness of the claimant to attend a hearing (as opposed to being fit for work) to be properly investigated before pressing on with a disciplinary hearing which was to consider very serious allegations against the claimant – allegations which by reason of the necessity to involve the DBS were potentially career ending. I note that the more serious the allegations, the more the respondent needed to do to ensure a fair and reasonable procedure was carried out: A -v- B 2003 (above).14.10 The failure of the respondent to provide legible notes of the meeting on 20 November 2019 to the claimant was unreasonable. On any view, the notes produced of that meeting were at best very difficult to decipher and, at worst, simply illegible. At the meeting on 11 December 2018, the respondent took notes and produced typed notes very shortly after the meeting for the claimant to review. Why could the same practice not have been adopted for the November meeting? I infer it was laziness, at best, on the part RESERVED JUDGMENT Case Number: 2404985/2019 of HCO or whoever it was who had the responsibility to type the notes. Given the serious matters discussed on 20 November 2018 over 4 hours, any reasonable employer would have provided legible notes to the claimant – especially when she was hearing details of the allegations against her for the first time in what was, on any view, a difficult meeting for her dealing with very serious allegations.14.11 The respondent through SS made no allowance in the way he conducted the disciplinary hearing on 3 January 2019 for the absence of the claimant. SS interviewed IO and clearly received further information from her. IO “pulled together” the allegations and the investigation for SS. Given the absence of the claimant and if he was intent to press on without her, SS could have raised questions of the claimant in writing about matters discussed with IO outside the Report but instead pressed on with the meeting making no allowance for the claimant’s absence. I infer this was because SS had jumped to the conclusion that the claimant was simply attempting to delay or derail the process and that her illness was not a genuine one. I note also that SS did not refer to the claimant’s 10 years of service with the respondent and her clean disciplinary record. That was very substantial mitigation which any reasonable employer would at least have considered. SS accepted in cross examination that he had not done so. In addition, SS had had some small involvement in the production of the Report and thus had been involved at the investigation stage which was not a reasonable process to adopt given the desirability of keeping the investigation separate from the disciplinary process. The size and administrative resources of the respondent are such as to make that separation easily achievable.14.12 Whilst some of those factors alone would not, in my judgment, have rendered the decision to dismiss the claimant unfair, taken together I conclude that the decision of SS to dismiss the claimant was procedurally unfair. It meant that the claimant was dismissed without being given the opportunity to present her case about some of the very serious allegations against her – in particular those which had arisen from the statements of CD, NC and RJ who were all interviewed after 20 November 2018 and whose statements were not discussed with the claimant on 11 December 2018, as they could have been. That central feature of a reasonable procedure was absent.14.13 I take account of the submission from Mr Grundy that the respondent should not expect its procedures to be the subject of detailed forensic analysis and that all that is required is reasonableness. I note there is a wide band of reasonableness. However, I conclude that at the point of the claimant’s dismissal, communicated to her on 7 January 2019, the decision was procedurally unfair and, given the extent of the unfairness at that stage and the absence of an opportunity for the claimant to put forward her full answer to all the allegations against her, that there were no reasonable grounds at that stage to move to dismissal. No reasonable employer would have moved to dismissal at that stage.14.14 The next important question for my consideration is whether the appeal process, and in particular the offer of a re-hearing from RCEO, corrected the unfairness which tainted the decision made on 3 January 2019.14.15 I remind myself that I must consider whether the appeal procedure was a reasonable one and I must not now dwell on the question of whether what RCEO carried out amounted to a review or a rehearing. I must consider the fairness of the appeal process and, in particular, whether RCEO approached the matter with an open mind. I RESERVED JUDGMENT Case Number: 2404985/2019 note that the appeal hearing on 1 March 2019 was attended by the claimant. I accept the evidence of RCEO that he was not aware of the full details of the case at that time and was intent only on dealing with the largely procedural grounds of appeal advanced by the claimant. Having delved into what had gone on, it is not difficult to see why RCEO concluded that the only way to cure the evident unfairness was to hear the matter again. Because RCEO was not aware of the details of the case before the appeal hearing began, his decision to do so meant that there needed to be another appeal hearing. At that point, the claimant stated that she had had enough and through her solicitors indicated that she would not attend. That difficulty would have been avoided if RCEO had familiarised himself with the case before the hearing on 1 March 2019 and conducted a full rehearing on that day. Given that I am judging the actions of the respondent at this stage of my enquiry, it is not appropriate for me to consider whether or not the claimant was entitled to withdraw her co-operation at that stage. To correct the unfairness of the past, I conclude that any rehearing needed to be very carefully and thoroughly managed in order to fall in the band of reasonableness. I am not satisfied that the rehearing was dealt with in that way.14.16 At the end of the hearing on 1 March 2019, RCEO told the claimant that he was satisfied that the process to that point had been conducted in a fair and transparent way but, as the claimant had not had the opportunity to defend herself, he proposed to hear the matter afresh. His stated view that what had transpired to date was fair sits very uneasily with the claimant having had no opportunity to properly defend herself and frankly flies in the face of any reasonable view of the fairness of the process to that date. I have already concluded that the procedure followed to that date fell outside the band of reasonableness and RCEO’s statement that the process had been transparent and fair raises serious concerns about the open-mindedness of his approach going forward.14.17 By the time the rehearing took place, I am satisfied that the claimant still had not received typed copies of the notes from the investigation meeting on 20 November 2018. If an appeal process is to correct previous errors, then those errors needed so far as possible to be put right. That considerable failing on the part of the respondent could have been put right but was not.14.18 At the rehearing in the absence of the claimant, JS attended and gave further evidence in particular to the effect that she had given an instruction to the claimant to allow YP2 back into the Home on 11/12 October 2018 if she returned. RCEO did not see fit to raise any question with the claimant as to that new evidence on what was a crucial allegation. The claimant was not present, but she could have been written to and asked for her comment on any new evidence, such as that, but that step was not taken. Of course, the claimant may have chosen not to respond but no thought was given to at least allowing the claimant the opportunity of doing so and that raises for me further questions as to the open-mindedness of the approach of RCEO.14.19 At the hearing before me it was accepted that the claimant would not have faced dismissal for allegation 4 alone as it was not an allegation which amounted to gross misconduct yet in the outcome letter from the rehearing on 28 March 2019, RCEO writes that (page 363): “I believe, on the balance of probabilities, that you have committed the following allegations of gross misconduct…”. RCEO then goes on to deal with allegation 4 as though it were an allegation of gross misconduct. He sets out his conclusions that go beyond the allegation as framed. Reference is made to the claimant being advised RESERVED JUDGMENT Case Number: 2404985/2019 that a risk assessment needed to have been carried out and that the claimant knowingly had gone against company procedure by allowing one member of staff to work alone on shift with two young people. Those matters had not been discussed with the claimant in that detail and RCEO accepted evidence given to him without seeking to test it. Once again, that evidences a closed mind to the process then being followed which is not what any reasonable employer would have done.14.20 The outcome letter from the rehearing (pages 363-365) makes no reference to the claimant’s length of service and clean disciplinary record which any open-minded process seeking to correct previous errors would have considered. I conclude that no consideration was given to that important factor and that is further evidence of predetermination of the outcome of the rehearing.14.21 To correct the unfairness of the procedure followed to the date of the rehearing, there was a necessity for a transparent and fair approach. I am not satisfied that the procedure adopted by RCEO evidenced a procedure which fell within the band of reasonableness. I have concerns also that, by the time of the rehearing, the respondent had appointed MB into the role of manager of the Home, and I conclude that RCEO was simply going through the motions once he was told that the claimant was not to attend.14.22 Accordingly, I conclude that the unfairness of the dismissal of the claimant by SS was not corrected by the procedure followed by RCEO. Accordingly, the claim of unfair dismissal is well-founded, and the claimant is entitled to a remedy. Further Findings of Fact14.23 With that conclusion in place, it is necessary that I set out my own findings of fact as to the conduct of the claimant in order to inform my conclusions on the question of contributory conduct and a Polkey assessment in respect of the unfair dismissal claim and also my conclusion on the claim of wrongful dismissal. I reach my findings of fact on the balance of probabilities.14.24 In terms of allegation 1, I conclude that the claimant did run a tight ship in terms of her treatment of the staff managed by her in the Home. I accept the evidence from the claimant herself and from JS that there was a high turnover of staff in the Home. That is not an indication of a happy ship. I conclude that the claimant did have certain members of staff whom she preferred over others and that she could be offhand and unpleasant to members of her staff from time to time. However, there is ample evidence before me (through copy text messages and the like attached to the claimant’s statement) that the claimant enjoyed good relations with certain members of her staff and that, if she thought she had behaved unkindly, she would apologise. The allegations of bullying advanced against the claimant were vague in the extreme and I do not accept that what the claimant did amounted to bullying towards her staff. She was robust and evinced unprofessional behaviour towards her staff from time to time, but I do not conclude that her behaviour was culpable or blameworthy to the extent necessary to justify a reduction from compensation for unfair dismissal.14.25 In relation to allegation 2 and YP2, I adopt my findings at paragraphs 10.8 above. In her supplemental witness statement, the claimant provided much more information in relation to the case of YP2 and I broadly accept her evidence. However, the fact remains RESERVED JUDGMENT Case Number: 2404985/2019 that the respondent company exists in order to provide a home for troubled and challenging young people. Before a young person is received into a home, a risk assessment is caried out and a decision taken as to whether to offer a place. That exercise had been gone through in the case of YP2 at the beginning of October 2018 and a place given to her in the Home. The removal of a young person from a home of the respondent is rare – all the more so after so short a stay. I infer that the claimant was unhappy about YP2 coming into the Home in the first place because of the behaviour she had evinced in the past and what the claimant saw take place in relation to YP2 on 11 and 12 October 2018 was a vindication of her view that YP2 should not have been placed in the Home at all. The respondent has procedures in place if a young person is to be removed from a home. I conclude the claimant knew those procedures but did not follow them on 11 and 12 October 2018 in relation to YP2. I accept that the behaviour of YP2 was extreme and that she made threats towards the safety of the claimant’s other young residents and her staff. But that is what can be expected, and challenging behaviour needs to be managed. By any standard, to have a young person awoken and removed from her bed and from the Home by the police at 8am in the morning because the claimant had instructed YP2 should not have been re-admitted to the Home was a failure of YP2 by the claimant and the respondent. I conclude that there was mitigation for what the claimant did. She had support from GM in her view that YP2 was not suitable for the Home and thought GM had given clearance for the removal of YP2. However, I conclude the claimant should have known that GM did not have the authority to sanction the removal of YP2 and, if she was unsure, she should have enquired. I conclude that the claimant knew that the correct procedures to remove a young person from the Home had not been followed in respect of YP2. I conclude that with YP2 on the run and being sought by the police, the instruction given by the claimant that YP2 should not be allowed back into the Home was a very inappropriate instruction to have given and was culpable and blameworthy conduct by the claimant. However, once YP2 had returned to the Home and was asleep in bed, I conclude that the claimant’s instruction to have her woken up and removed at around 8am on the morning of 12 October 2018 was not merely inappropriate but was culpable and blameworthy conduct by the claimant and it contributed to her dismissal. The return of YP2 offered an opportunity on 12 October 2018 to re-assess the situation calmly and properly but I conclude that the claimant did not take that step as she wished to see her previous instruction carried out without any thought to the welfare of YP2. The claimant was the manager of the Home and she bears a large share of the responsibility for what happened on 11 and12 October 2018 in respect of YP2.14.26 In relation to allegation 3 and YP1, I conclude that the evidence from the members of staff interviewed by IO is extensive and consistent. I conclude on balance that the claimant did give instructions in mid-2018 in relation to YP1 that, when her behaviour became particularly challenging, she should not be allowed to eat in the kitchen with the other young people but instead should eat alone in the hall or in her room at the Home. I am also satisfied that the claimant did give an instruction that the kitchen of the Home should be locked against YP1 when her behaviour deteriorated. I am satisfied also that the claimant did withdraw privileges from YP1 in an inappropriate way as alleged by SH in her interview with JS. The allegations are corroborated and there is no reason why those members of staff should say such things if they did not occur. I am supported in this conclusion by reference to contemporaneous documents (for example page 518 and page 519) which refer to the kitchen door being locked and I also note that, when eventually engaging with this allegation in her witness statement filed on the day before the hearing of this claim, the claimant does not expressly engage with the substance of RESERVED JUDGMENT Case Number: 2404985/2019 these allegations. I conclude that in acting as she did towards YP1 that the claimant breached her primary duty to safeguard the welfare of YP1 and again a young person in the care of the respondent and the claimant was failed. In reaching this conclusion, I note that the DBS did not consider these matters worthy of further action against the claimant and I factor that into my assessment of the percentage level of contributory fault.14.27 In relation to allegation 4, I conclude that the claimant did seek to show that the staff rota for the period of her annual leave in October/November 2018 was covered fully when in a small way it was not. I conclude that the claimant took this strange action in order to dissuade JS from introducing staff from other homes into the Home during the claimant’s absence. I infer this was a consequence of the poor relationship which had developed between the claimant and JS at the time and the claimant’s wish to preserve “her home” from outside interference as she saw it. Polkey Assessment14.28 I must consider whether the claimant could and would have faced being fairly dismissed if the procedural flaws identified in the dismissal process had not occurred. In making this assessment I take account of the statement provided by the claimant shortly before the hearing which set out for the first time her answer to the substantive issues raised against her by the respondent.14.29 I conclude that if the matters set out by the claimant in relation to the dealings with her staff had been considered by the respondent that the chances of her being fairly dismissed for those matters was slight. The allegations were vague and at most demonstrated a need for refresher training as a manager rather than any serious cause for concern. There was some element of misconduct by the claimant but not to any serious extent and I conclude that the claimant would not have faced dismissal for that reason.14.30 In relation to allegation 4, it was accepted by the respondent that the claimant would not have faced dismissal for that reason alone even if the respondent had concluded that there was an attempt to mislead JS and the respondent in respect of the shift on 2 November 2018. This was minor misconduct at most.14.31 I consider that if the respondent had been able properly to consider all that the claimant now says about the events leading to the exclusion of YP2 from the Home that there was a considerable chance that she would have faced dismissal but there was considerable mitigation. The mitigation relates to the involvement of GM and the fact that the claimant thought, albeit mistakenly, that GM had the authority to agree to the removal of YP2 from the Home. Mitigation also exists from the fact that it may well have been that YP2 was not a good match for the Home and may well have been moved elsewhere if proper procedures and considerations had been taken into account. The respondent would properly have taken all the extensive mitigating circumstances into account and may fairly have held off from dismissing the claimant in relation to the events surrounding YP1 especially given her length of service and clean disciplinary record. However, there remains a high likelihood that the respondent would have dismissed and dismissed fairly in relation to allegation 2.