Mr D Deacon v John Thomas Cole and Delia Cole T/a Eldron Care: 2500619/2018
JUDGMENT
After hearing the parties, the judgment of the Tribunal[1]The complaint that the claimant was unfairly dismissed is dismissed 2 the claimant’s complaint that he suffered unauthorised deductions from his wages is dismissed on withdrawal by the claimant 3 the correct name of the respondent is John Thomas Cole and Delia Cole t/a Eldron CareREASONS
[1]At the end of the hearing, the Tribunal gave its Judgment and Reasons for the Judgment. The claimant requested that the Tribunal should set out its Reasons in writing. Accordingly, these Reasons set out the Tribunal’s findings in support of its Judgment. Whilst the wording and order may differ from the announced version, this is with the benefit of more preparation time and is not the result of further deliberations by the Tribunal.[2]These are complaints by David Deacon, the claimant, against John Thomas Cole and Delia Cole t/a Eldron Care, the respondent, (named in the complaint as ‘Eldron Care’) arising out of his employment by the respondent as a care worker. The claimant alleges that he was unfairly dismissed by the respondent, which the respondent denies. The claimant had also included a claim for unauthorised deductions from his wages but this complaint was dismissed on withdrawal by the claimant[3]It was in dispute when the claimant’s employment commenced. The claimant contended that he had undertaken two weeks work for the respondent in July, 2014, but did not commence continuous employment with it until July 2015. The respondent contended that he was in continuous employment from July, 2014. There was not any documentation produced to corroborate either version but the Tribunal accepted that the claimant was in continuous employment with the respondent from July, 2014, until the agreed effective date of termination on 3 February, 2018, when he had been in continuous employment for three complete years.[4]Both parties accepted that, at the relevant times, the claimant had been an employee of the respondent. The respondent admits that the claimant was dismissed and contends that this was on the ground of capability/conduct. The Tribunal must decide whether this was the ground for dismissal and whether the dismissal was unfair. If the claimant was unfairly dismissed, the Tribunal must consider whether the claimant caused and/or contributed to the dismissal or whether there are any other factors that might affect the remedy to which the claimant might otherwise be entitled and the appropriate remedy, if any.[5]The Tribunal heard evidence from the claimant and from John Thomas Cole, partner, on behalf of the respondent. The witnesses gave their evidence in chief by submitting written statements that were read by the Tribunal before the hearing and confirmed on oath/affirmation and, as permitted by the Tribunal, answering supplemental questions. All witnesses were cross-examined. The Tribunal had before it a bundle of documents, marked ‘Exhibit C1’. Both parties made oral closing submissions. From the evidence that it heard and from the documents that it saw, the Tribunal finds the following facts.[6]The respondent operates residential care homes. It had operated five homes but this reduced to one. The respondent is regulated by the Care Quality Commission and local social services. There are regular inspections and if any irregularities are found, these can place the respondent’s business at risk. The proper administration of medication is an important aspect of the respondent’s work, both in the interests of clients and to meet regulatory requirements. As a result of the contraction of the respondent’s business, it had limited resources available in respect of management and administration.[7]The respondent has a policy entitled ‘Medication – Administration and Management’. This deals in some detail with the administration of drugs required by clients. It includes a provision that there is a ‘no-blame’ policy to encourage openness in the event of errors being made in the administration of drugs. However, there is an obligation for employees to be open about such errors and to report them without delay so that any necessary remedial action can be taken.[8]The respondent also has a disciplinary procedure which is described as not being contractual but which it ‘will normally follow unless there is a valid reason for doing otherwise’. Although described as a ‘disciplinary procedure’, it also covers poor performance. The procedure sets out the way in which it will be implemented, which includes, among other things, a commitment by the respondent to provide copies of statements or other evidence prior to any hearing.[9]The claimant was employed as a care worker. He worked in a team providing care but, at times, could be working alone. He originally worked with a single client who had serious problems and could be violent. He then moved to a home to work with two clients. Among other things, he administered medication and was considered to be competent at doing this.[10]The respondent was contracting and had to consider making some employees redundant. The claimant was informed that he was at risk of redundancy but sufficient other employees took voluntary redundancy so that he was able to keep his job.[11]One of the two clients that the claimant was caring for died and it was not viable to maintain caring for the other client on his own. He was moved to another home, which already housed three clients, and the claimant moved with him.[12]The claimant found the work at the new home to be more complex than anything he had previously experienced. The clients had more complex problems, with more complex medication and different needs.[13]On 26 July, 2017, a staff supervision report concerning the claimant was completed. The claimant asked for support and this was provided by the respondent. The points that the claimant raised were recorded. The claimant was observed giving medication and it was recorded that he followed the training procedure that was demonstrated to him during his induction. It was also recorded that the claimant wanted support until he was familiar with the routine and confident in following it.[14]The next supervision meeting was on 31 July, 2017. It was noted that the claimant administered medication correctly but needed to build his confidence to do it alone. Also, that the claimant said that he feared making an error and still needed support.[15]When the next supervision meeting took place, the claimant was described as ‘very competent and appeared more confident’. However, it was found by the respondent that he needed to give some attention to his record keeping.[16]On 13 August, 2017, the claimant was shown new procedures in respect of medication and changes in certain procedures. The claimant was observed to administer medication without any problems. The claimant stated that he now understood the medication requirements of two of the clients.[17]During the supervision meeting on 17 September, 2017, the claimant appeared unsure about routines. It was explained to him that he was expected to have made more progress in the two months that he had been at this home. The claimant said that he would focus on improving.[18]On 17 October, 2017, the claimant was observed correctly giving medication to a client. However, he was advised to concentrate on what was written on the label on the medication and not just look at what it said on the box. The claimant accepted this and said that he was familiar with the medication but would ensure that he followed the correct procedure.[19]On 28 October, 2017, the claimant was working with a colleague. The colleague told the claimant that she would sort out a named client’s medication but had something to do first. When she had finished the other task, the colleague noted that the claimant had prepared the wrong medication for a client. The colleague corrected the medication but seven tablets were wasted as they could not be correctly identified. The claimant had tried to return the wasted tablets to blister packs. The claimant said that he was not confident about the medication and was not in the right frame of mind to administer it. If that was true, there had not actually been any need for the claimant to get involved with the medication on this occasion.[20]The colleague reported the matter to T L (Lynn) Slassor, who discussed the matter with the claimant and wrote a report.[21]The claimant was called to a disciplinary meeting on 3 November, 2017. It was conducted by Andrew Cole, general manager, and Beverley Cole, general manager. The reason for the meeting was stated to be because of ‘concerns with your general capability and…a near miss…whereby you nearly exceeded a service users dose…’ Whilst it was acknowledged that there is a ‘no-blame’ policy regarding medication errors, this was only one example of the claimant’s perceived failures. The procedures in place were discussed as were the types of support available to the claimant. It was noted that the claimant worked correctly when under supervision but not on a general day to day basis.[22]As happened in respect of subsequent hearings, the claimant was not provided with any written evidence concerning the allegations made against the claimant, although the panel members were aware of it. The respondent justified this departure from its procedure on the ground that it was feared that this would cause ill-feeling between employees if it was known precisely what was being said about the claimant and by whom. However, it appeared clear that the claimant was fully aware of the nature of the allegations being made against him and that the only evidence was concerned with his actions. Although the claimant may have attempted to provide justification/mitigation, he did not dispute the nature of the allegations.[23]The claimant was issued with a written warning, to remain on his record for six months, during which time he would be supervised and an improvement in performance would be expected.[24]The claimant was informed that he could appeal against this decision but chose not to do so.[25]Supervision took place on 22 November, 2017. The claimant was noted to be administering medication correctly but comments were made about the need to maintain the dignity of clients and his record keeping. The claimant referred to tiredness being a factor in him making mistakes, possibly relating to changed shift patterns. The claimant was told that he must inform management of any concerns of this type.[26]On 12 December, 2017, Beverley Cole raised various concerns regarding the claimant’s performance and the risks that he was causing. One of the claimant’s colleagues also prepared a statement expressing concerns about the claimant.[27]By a letter dated 15 December, 2017, the claimant was invited to a further disciplinary meeting because of a perceived lack of improvement since the last disciplinary meeting. He was informed that his continued employment was at risk and that he could be accompanied at the meeting. The claimant was also given oral notice of the meeting.[28]The meeting was held on 19 December, 2017, and was conducted by John Cole and Beverley Cole. The claimant was concerned that one of his colleagues, Lynn Slassor, who he believed was sympathetic to him, was not present and he was told that he was entitled to be accompanied, if he so wished, and that he could withdraw if he was not comfortable. However, the claimant continued with the meeting.[29]There was a discussion about the reasons for the meeting and the lack of improvement that had been observed in the claimant and a list of problems were identified. However, the respondent was not considering dismissal, at this stage, because of the claimant’s improved performance during the previous day. The claimant was allowed to raise points that concerned him. These included not being able to always take holidays when he wished and faults in others and management that he was either not prepared to identify and/or had not previously reported. Management denied that they wanted to dismiss him and noted that he had successfully avoided redundancy on previous occasions. It was also pointed out to the claimant that when he asked for support it was given.[30]The claimant was given a final written warning and areas for improvement were identified. Again, the claimant was offered the opportunity to appeal but failed to do so.[31]A further incident occurred on 30 December, 2017, and was observed by Beverley Cole. She noticed that the claimant seemed agitated and that medication records were open. Eventually, the claimant confirmed that he was concerned that he had given a client the wrong medication. After counting the tablets, it was confirmed that an error had been made. The claimant acknowledged responsibility and said ‘well I’ve lost my job now’. The claimant was allowed to leave work as it was thought that he might not be in a fit state to continue. The claimant was then suspended on a ‘without prejudice’ basis.[32]In his statement, the claimant accepts that he made an error in respect of administering medication.[33]By a letter dated 2 January, 2018, the claimant was invited to a disciplinary meeting on 10 January, 2018. The claimant was warned that dismissal was a possibility and that he could be accompanied at the meeting.[34]The disciplinary hearing was conducted by John Cole who found that the claimant had made errors in respect of administering medication and that his performance was still unsatisfactory.[35]It was decided that the claimant would be dismissed with notice, to expire on 3 February, 2018. The claimant’s dismissal was confirmed in a letter dated 12 January, 2018, which also confirmed his right of appeal.[36]By a letter dated 18 January, 2018, the claimant appealed against his dismissal, stating that the sanction was disproportionate and the process followed was unfair. The claimant considered that his mistakes were minor in nature and that there was inadequate support. He asked that the appeal be heard by a senior manager who had not previously been involved in the disciplinary process.[37]The appeal was heard on 1 February, 2018, by John Cole and Lynn Slassor. The claimant was told that he was entitled to be accompanied.[38]Because of the size of the respondent, it was difficult for the respondent to find someone with sufficient seniority who had not had involvement with claimant and his problems. Lynn Slassor was the person who the claimant had wanted to be present at an earlier meeting.[39]At the appeal, the matters raised by the claimant in his appeal letter were considered. At the start of the hearing, the claimant asked if he could be made redundant instead of being dismissed for disciplinary reasons. The claimant was found not to have accepted responsibility for his errors. He considered that the errors were minor, apparently not recognising the risk of an overdose of medication. It was considered by the respondent to be essential that management had confidence in its employees because of the occasions of lone working. The claimant had had six months to adjust to his place of work and had received training and support during that time. Errors by other employees would be dealt with if the claimant identified them. Instead of dismissal, the claimant asked to be considered for redundancy. It did not appear that the claimant disputed the basic facts in respect of which the allegations were made.[40]The claimant’s appeal was dismissed and this was confirmed in a letter dated 5 February, 2018.[41]The claimant contends that he was unfairly dismissed by the respondent because of procedural irregularities. Further, that the decision to dismiss the claimant was excessive and that a lesser sanction should have been imposed, in any event. The respondent contends that it followed a proper procedure and that it reached decisions that it was entitled to make.[42]Section 98(1) of the Employment Rights Act, 1996, as amended (‘the Act) states that: 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 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.” Capability and conduct are two of the potentially fair reasons set out in subsection (2).[43]Where the reason for dismissal has been established, then the task for the Tribunal is set out at section 98(4) of the Act. That provides: ... the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)(a) depends on whether in the circumstances (including the size and the administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.[44]It is well-established law in a case of alleged unfair dismissal that the Tribunal is not entitled to ask itself what it would have done in the circumstances: it is only entitled to ask whether the employer acted reasonably or unreasonably. Also, unless it is considering contributory conduct and/or a procedurally unfair dismissal, the Tribunal is not required to decide whether the claimant did what he is alleged to have done. It is only required to decide whether, after an appropriate investigation, the respondent reached a conclusion that it was entitled to reach on the basis of the facts before it and whether the sanction applied was within the band of reasonable responses open to the respondent in the circumstances of the case.[45]The Tribunal finds that the claimant was dismissed for the principle reason of conduct. The claimant had been observed to properly administer medication on several occasions. However, there is also evidence to support a conclusion that the dismissal was, at least in part, on the ground of capability. The claimant had demonstrated that he was capable of undertaking the tasks for which he was employed but was found by the respondent to have lapsed on several occasions and appeared to have difficulty in maintaining his level of performance, despite the support that he had received. Poorly administering medication was not the only fault in the claimant’s work that had been identified during supervisions. The claimant’s actions, as found by the respondent, were the reasons for dismissal and whether this is termed conduct or capability or a combination of both is really an issue of labelling.[46]The procedure followed by the respondent leaves a lot to be desired. However, it is not for the Tribunal to impose its own standards. It is a small business with limited administrative resources. Most of the senior employees had had dealings with the claimant and had witnessed his faults and/or taken part in disciplinary actions. It was therefore difficult to find anyone who could be considered ‘independent’. The final appeal panel was not ideal but it included one person in respect of whom the claimant had previously indicated that he thought she was sympathetic to him.[47]The allegations related to the actions of the claimant, which were not denied by him. In a case of this type, there is little need for investigation as the facts were not in dispute. The Tribunal was satisfied that, despite the deficiencies in the procedure, having regard to all of the circumstances, the ACAS Code of Conduct had sufficiently been complied with.[48]The claimant had been subject to two earlier disciplinary processes before he was finally dismissed. In each case, he was not supplied with any evidence against him but he was fully aware of the allegations and what he was alleged to have done wrong so that he was able to answer the allegations. In each case, he was offered the opportunity to appeal against the outcome but chose not to. Accordingly, when he attended the hearing when he was dismissed, he was already subject to a final written warning and the Tribunal was satisfied that this was something that the respondent was entitled to take into account.[49]The conduct of the claimant was not in dispute and the real issue was the severity of the sanction. The Tribunal was satisfied that the respondent reached conclusions concerning the actions of the claimant that it was entitled to come to on the basis of the information available. Whilst the claimant sought to minimise the potential consequences of his actions, the respondent was entitled to find that they were serious and could have had an adverse effect of the respondent’s clients and its business. The sanction of dismissal was within the band of reasonable responses for an employer in the circumstances of this case. Accordingly, the decision to dismiss was not unfair.[50]Even if the Tribunal had found that the procedure followed by the respondent was not fair, the Tribunal would have found that it was satisfied that if a fair procedure had been followed the outcome would have been the same. The claimant was aware of the allegations being made against and had an opportunity to answer them. He did not dispute those allegations. He was already on a final warning and appreciated at the time of his error that his employment was at risk. This was the third time that he had faced disciplinary action for virtually the same set of facts so that it was not unreasonable for the respondent to consider that the claimant’s continued employment was too great a risk to the respondent and, more particularly, its clients.[51]Further, if the claimant had been unfairly dismissed, the Tribunal would have held that the claimant contributed one hundred per cent to his dismissal. In his previous roles, he had demonstrated his ability to undertaken them satisfactorily. He therefore had transferable skills when he took up his new role. He had had several months training and supervision in the new role that he undertook up to his dismissal. In his previous roles, he had demonstrated adequate competence and, in his final role, he had also demonstrated competence in his duties. If for any reason he felt unsure of what he was doing, he could have asked for help and this would have been given by the respondent. His conduct placed the respondent’s clients at risk and also the operation of the respondent. The claimant either failed to properly comply with procedures of which he was fully aware or, if he had any level of uncertainty or doubt, he failed to seek guidance and/or support in respect of matters that he knew or ought to have known could place clients at risk.[52]Having regard to the above and to equity and the substantial merits of the case, the Tribunal finds that the claimant was not unfairly dismissed and his complaint that he was should be dismissed.