Ms R O’Keefe v D J Haswell Ltd T/a Bluebird Care (South Tyneside and Newcastle): 2500800/2023
EMPLOYMENT TRIBUNALS
Case No 2500800/2023
Between
Ms R O’KeefeClaimantD.J. Haswell Ltd t/a Bluebird Care (South Tyneside & Newcastle)Respondent
Before
Employment Judge SweeneyDate 1 May 2024
JUDGMENT
[1]The Claimant’s claim for unfair dismissal is well-founded and succeeds.[2]The Respondent is ordered to pay to the Claimant: 2.1. £3,426 by way of a Basic Award 2.2. £14,863.77 by way of a Compensatory Award[3]The total award payable to the Claimant is £18,289.77
REASONS
[1]By a Claim Form presented on 21 April 2023, the Claimant brought a claim of ordinary unfair dismissal having previously withdrawn a whistleblowing claim. She gave sworn evidence to the tribunal and additionally, called two witnesses, Mrs Boll and Mrs Fenwick.[2]Ordinarily, in an unfair dismissal case, a tribunal would expect to hear at the very least from the person who made the reason to dismiss. The reason for that is too obvious to have to state. If not the decision maker (for example because he or she is for some good reason unable to give evidence) then the appeal officer, or the person who carried out the investigation. Rather unusually, in this case, none of those people were called as witnesses by the Respondent and no reason for their failure to call them was advanced. Only Mr Haswell gave evidence on behalf of the Respondent. He is one of the directors and owners of the business. On his own account, however, he had no involvement in the investigation or decision making into the claimant’s dismissal. Therefore, to say that the tribunal was somewhat hampered in being able to ‘police’ or assess the Case Nos:2500800/2023 2 reasonableness of the investigation and more particularly the decision making is putting it rather mildly.
Findings of fact
[3]The Respondent is a franchisee company that specialises in the provision of domiciliary care within a defined territory in South Tyneside, Newcastle and Darlington under a franchise known as Bluebird Care (‘Bluebird’). Mr Haswell is the owner and one of the directors of the business. The Claimant was employed by the Respondent from 17 June 2017 as a Deputy Manager. In about December 2021 Mr Haswell bought a further company, Inspired Care (‘Inspired’), which introduced new staff and carers (for those requiring complex care) to the Bluebird offices.[4]On 14 November 2022 the Claimant was summarily dismissed by Julie Haley, the Respondent’s Operations Manager.The circumstances leading up to her dismissal are as follows.[5]On 13 September 2022 she was suspended by Mr Haswell. It is alleged that at this meeting the Claimant said to Mr Haswell that ‘if she was going down she was going to take everyone with her’. The Claimant denies that she said this. I accept the Claimant’s account and find that, although she was upset at being suspended, she did not say what Mr Haswell attributes to her.[6]The Claimant has been unable to locate the letter of suspension and, without explanation it has not been disclosed by the Respondent. The circumstances that led to the Claimant’s suspension are very unclear. The Respondent was contacted by the CQC regarding some matter which was not fully explained to the Claimant or to the tribunal, other than to say that it concerned the Claimant and Lynn Boll, the registered manager. Mrs Boll happens to be the Claimant’s mother. She too was suspended and was subsequently dismissed, as far as I can make out, for the same reasons as the Claimant and, as far as I can make out, on the same date.[7]The Respondent commissioned Croner to undertake the investigations into the alleged conduct of the Claimant and Mrs Boll.[8]On 14 September 2022, the Claimant raised a grievance. She sent further emails relating to her grievance that day and the following day. Croner was commissioned to investigate the grievance. A report was prepared dated 26 September 2022.[9]The Claimant was interviewed by a Croner consultant, Duncan McNaught, on 17 October 2022. In addition to the Claimant, he interviewed Mrs Boll and Lisa Naisbitt.[10]Mr McNaught asked the Claimant questions about safeguarding [page 400], whether she had responsibility for safeguarding and how she managed safeguarding. She was asked whether she knew whether the way in which she managed safeguarding complied Case Nos:2500800/2023 3 with CQC guidelines [page 406]. The spreadsheet on page 604A-604F of the hearing bundle was shown to the Claimant [page 407]. There is no reference to any of the comments which appear on another version of the spreadsheet in the bundle. Those comments were made by Lisa Naisbitt. Nor is there any reference to Ms Naisbitt’s comments in the record of her interview. It does not appear that Mr McNaught took the Claimant through the comments. I infer from this that, at the investigatory interview stage the version with the comments from Ms Naisbitt was not made available to the claimant.[11]Mr McNaught recommended that the Claimant face a disciplinary hearing in relation to three allegations. In the report prepared by Mr McNaught, he says under paragraph 2 under heading ‘summary of findings’: “It is alleged that, since the beginning of 2022, you have repeatedly failed to implement and adhere to the standard of safeguarding required from you, both by the company and regulatory bodies. The company asserts that is a gross breach of both company and regulatory requirements. Further particulars as per the evidence pack.”[12]The spreadsheet was enclosed with the letter of 04 November 2022, informing the Claimant that she was to attend a disciplinary hearing [page 497]. I find that by this stage, the comments made by Lisa Naisbitt had been made available. The Claimant accepted that she had these at the disciplinary hearing and that Ms Haley referred to some of them. The Claimant then attended a hearing on 10 November 2022, chaired by Julie Haley.[13]The key allegation for purposes of this hearing is allegation 2: “It is alleged that, since the beginning of 2022, you have repeatedly failed to implement and adhere to the standard of safeguarding required from you, both by the company and regulatory bodies. The company asserts that is a gross breach of both company and regulatory requirements. Further particulars as per the evidence pack.”[14]That allegation was addressed by Ms Haley [pages 515-516]. The record of the meeting reveals some fairly perfunctory questioning. Nowhere does Ms Haley refer to the Claimant as being a safeguarding lead, or having the sole, or joint or even delegated responsibility for reporting to the local authority or the CQC. In fact, she states “the registered manager has total accountability.” [page 516]. Mrs Boll was the registered manager.[15]Ms Haley asked the Claimant if the registered manager ever told her that the matters recorded by her needed reporting to the local authority, to which the Claimant said no. The Claimant also stated that nobody had ever told her that she had not been doing things right. She said that there had been no governance meetings for some time and that no concerns had ever been raised with her. Case Nos:2500800/2023 4[16]Neither Mr McNaught nor Ms Haley made any further inquiries into what the Claimant said about this. Therefore, as far as the material before Ms Haley was concerned, there was nothing to indicate that the Claimant was responsible or accountable for reporting any of the matters referred to on the spreadsheet to the CQC or the safeguarding team or that she had been told to do things differently.[17]Ms Haley wrote to the Claimant on 14 November 2022 dismissing her without notice. She concluded as follows: “You failed on repeated occasions to submit safeguarding concern to the local authority safeguarding team. You did place these concerns by your own admission into a safeguarding file. Therefore, acknowledging that it was indeed a safeguarding concern.”[18]By now it was clear that the specific thing that resulted in the Claimant’s dismissal was the belief that she had failed in her responsibility to report reportable safeguarding concerns to the local authority safeguarding team. Much was said in this hearing about the CQC. However, the letter of dismissal refers to the local authority safeguarding team, not the CQC. It is possible that Ms Haley might have had in mind the CQC also but she did not say that and she did not give evidence.[19]The Claimant appealed the decision to dismiss her. This was heard by Simon Thompson, Managing Director on 15 December 2022. Notes of the hearing were on page 532-535]. The Claimant had not been provided with the notes of the disciplinary hearing by the date of the appeal hearing. At the appeal, her trade union representative asked ‘why was she dismissed for not following safeguarding policy when she wasn’t responsible for safeguarding’?[20]The thrust of the Claimant’s appeal was that she was not the designated officer and not responsible for safeguarding as she had always maintained. As her trade union representative put it, she was dismissed for not reporting when she was not the designated person and in circumstances where she only had basic training on recording of concerns. If anything, he said this was a training matter not a dismissal. Lynn Boll had responsibility and David Haswell was the nominated individual.[21]Mr Thompson, the appeal manager observed: ‘if anything, it may be performance and not gross misconduct.’ [page 535][22]The appeal meeting did not conclude that day. It was reconvened on 19 December 2022. By now the Claimant had been sent the notes of the disciplinary hearing. However, although she had asked on 14 December 2022 for the safeguarding policy to be disclosed at the appeal hearing it had not been. Case Nos:2500800/2023 5[23]It is clear, therefore, that before the Croner consultant who carried out the investigation and before the disciplinary and appeal hearing managers the Claimant maintained, as she does in this hearing, that she was not designated safeguarding lead and was not responsible for safeguarding beyond the responsibility all working in that sphere of activity have for safeguarding. She pointed out to the managers that there was no reference of this responsibility in her job description. She never took the lead on safeguarding and although she had safeguard training, this was basic safeguard training, and not specifically on reporting to the regulatory body or the local authority. To the extent that she did on occasion notify the CQC or local authority it was because she had been asked to on those occasions.[24]Mr Thompson rejected the Claimant’s appeal in a letter dated 28 December 2022 [page 547]. He regarded the statements from Lynn Boll and Victoria Fenwick to be “invalid” where they supported the Claimant’s appeal because they were former employees. Nonetheless, he cherry-picked one reference and quoted it in his appeal outcome letter. It is clear from reading that letter, and I so find, that Mr Thompson did not give the Claimant’s points any due consideration. Nor did he cause to be investigated the important points made by her that she had not been designated safeguarding lead, that she was not responsible for reporting to the CQC or local authority and that she only reported as and when asked to. Mr Thompson added ‘it has never been alleged that you were the designated safeguarding officer’.[25]The documents referred to in paragraph 6 of the investigating report [page 385], which included the ‘safeguarding policy’ were not disclosed to the Claimant during the disciplinary process. Nor was the statement of Lisa Naisbitt which was apparently obtained during the investigation.[26]Before the Claimant was dismissed from her employment, by August 2022 she had become unhappy working at the Respondent company. She had applied for a job with a local authority in February or March of that year but declined it to pursue her interests as a local councillor because she did not wish to put herself in a position of conflict. However, prior to her dismissal she had decided that by the end of September 2022 she would start to look for alternative employment.[27]In an unfair dismissal case, the task of the tribunal is to determine whether the employer has shown a potentially fair reason for dismissal and then, on a neutral basis, to assess its reasonableness. That does not require the tribunal to make findings of fact on the allegations that were made. However, where, as here (in the event that the dismissal is found to be unfair) the employer raises an issue of contributory conduct, the employer must establish by evidence that the things it says contributed to or caused the dismissal have been proved. In this case, the Respondent contended that:a. The Claimant was the designated safety lead, such responsibility having been delegated by Lynn Boll. (note this is contrary to what Mr Thompson said, see paragraph 24 above) Case Nos:2500800/2023 6b. As lead, she was responsible for reporting safeguarding concerns to the CQC and local authority.c. That the following entries in her spreadsheet were reportable matters: i. 12 February 2022 entry ii. 14 march 2022 Page 604B, iii. 29 march 2022, page 604B iv. 31 march 2022, page 604B v. 06 june 2022, page 604E vi. 16 june 2022, page 604E vii. 28 june 2022, page 604Ed. That she failed to report these and in doing so failed to keep customers, staff and bluebird care safe, failed to report concerns under her legislative duty within the Care Act 2014 and put the business at risk of criminal conviction.[28]Therefore, I must make findings of fact in relation to those matters.[29]The statement of Mr Thompson in his appeal outcome letter that ‘it has never been alleged that you were the designated safeguarding officer’ is entirely contradictory to Mr Haswell’s evidence to this tribunal and to the submissions of the Respondent. Mr Haswell said that the Claimant was the designated safeguard.[30]The Respondent’s case is also contradictory to the safeguarding policy (unsatisfactorily disclosed very late) that Mrs Boll was the safeguard lead and contradictory to the evidence of Lynn Boll and Victoria Fenwick. Mrs Boll maintained that she never delegated responsibility and that it was her responsibility, evidence which I accepted as truthful.[31]Given the nature of the business, it is difficult to understand how Mr Thompson as managing director, could not have known that the Claimant was the designated safeguard lead and that Lynn boll had delegated that responsibility – if indeed that were true. It was very difficult to understand how he could state what he stated if it was known that safeguarding was the responsibility of the Claimant.[32]The only documentary evidence produced to suggest that the Claimant was safeguarding lead was a document referred to as the NHS contract, where Mr Haswell had inserted the Claimant’s email address and name in the relevant part of the Contract. He said to this tribunal that the Claimant had specifically agreed to be the designated safeguarding officer and that Lynn Boll delegated this to the Claimant.[33]I must make my findings on the evidence before me. I make the following findings: Case Nos:2500800/2023 7 e. I am entirely satisfied that the Claimant was never designated safeguard lead. There is not a single reference in her contract or job description. There is not a single email or any other document referring to this bar the entry made by Mr Haswell in the copy of the NHS contract. It was not clear to me when those entries had been made and I note that the document was disclosed very late and never referred to during the investigation. It is entirely self-serving. In any event, I accept the claimant’s evidence as truthful. She never agreed to be safeguarding lead and was never asked to be the lead. She had never seen this document. It is not within the gift of Mr Haswell to identify her as safeguard lead without asking her if she agreed to take on such role. I reject his evidence that he did and that the Claimant specifically agreed as being untruthful. f. As to reporting safeguarding concerns, the Claimant only reported what she was asked to either by Lynn Boll, as registered manager, or by Victoria Fenwick as coordinator. g. The Claimant maintained a spreadsheet for her own records, not as an indication that she was expected to report safeguarding concerns and not in recognition that they were safeguarding concerns. h. Lynn Boll as registered manager had responsibility for safeguarding and for reporting concerns. That is entirely in keeping with the safeguarding policy where she is specifically identified as such. i. There had been no governance meetings for some time and neither Mr Haswell nor Mrs Boll ever raised with the Claimant that she had any responsibility in this regard. For the avoidance of doubt, the Claimant was responsible for safeguarding to the extent that everyone was. She was not, however, contractually or otherwise managerially responsible for reporting to the local authority or to the CQC as part of her role. j. I accept the Claimant’ evidence in paragraphs 55 to 73 of her witness statement. The Respondent has not demonstrated in evidence to my satisfaction (i.e. to the civil standard) that: i. The matters, save for those accepted by the Claimant, were matters that were reportable to the local authority safeguarding team. The only material adduced by the Respondent was the comments made by Lisa Naisbitt on the spreadsheet. Unlike the Claimant she has not put herself forward to be challenged on oath. Having considered the Claimant’s evidence very carefully, she has withstood the rigours of cross examination. She was an honest, considered witness and I accept her evidence regarding the entries as set out in her statement. Case Nos:2500800/2023 8 ii. The Respondent has not satisfied me on the evidence that it was, in any event, the claimant’s responsibility to report any of these matters. iii. There was a dispute as to whether the Claimant had ever been provided with the safeguarding policy. I find that she had not been. She had not seen the version which was produced (again very late) in the proceedings. She had asked to be provided with a copy during the disciplinary process but for unexplained reasons was never given a copy. I accept that the only policy she saw was that referred to with the staff handbook when she joined which was a summary. k. Further, it has never been suggested by the Respondent, either by Mr Haswell in his evidence or in submissions that the Respondent then reported these apparently reportable matters as safeguarding concerns. Had they been of such significance, I would have expected evidence of this to have been adduced. Relevant legal principles[34]It is for the employer to show the principal reason for dismissal and that it is a reason falling within section 98(2) or that it is for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. The reference to the ‘reason’ or ‘principal reason’ in section 98(1)(a) and s98(4) is not a reference to the category of reasons in section 98(2)(a)-(d) or for that matter in section 98(1)(b). It is a reference to the actual reason for dismissal (Robinson v Combat Stress UKEAT/0310/14 unreported). The characterisation of that reason (i.e. within which of subsection 98(2)(a)-(d) it falls) is a matter of legal analysis: Wilson v Post Office [2000] IRLR 834, CA.[35]A reason for dismissal ‘is the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee: Abernethy v Mott, Hay and Anderson [1974] ICR 323, CA. In a more recent analysis in Croydon Health Services NHS Trust v Beatt [2017] ICR 1240, CA, Underhill LJ said that the ‘reason’ for dismissal connotes the factor or factors operating on the mind of the decision maker which causes them to take the decision. It is a case of considering the decision-maker’s motivation.[36]In a ‘misconduct’ dismissal, the employer must also show that the principal reason for dismissal relates to the conduct of the employee. For the reason to relate to conduct, the conduct does not need to be ‘reprehensible’ or ‘culpable’: CJD v Royal Bank of Scotland and JP Morgan Securities Plc v Ktorza.[37]If it is established that the reason for dismissal relates to conduct the next question is whether the employer has acted reasonably in treating that reason as a sufficient reason for dismissal – s98(4) ERA 1996. The burden here is, of course, neutral. It is not for the employer to prove that it acted reasonably in this regard. The Tribunal must not put itself in the position of the employer. The Tribunal must confine its consideration of the facts Case Nos:2500800/2023 9 to those found by the employer at the time of dismissal and not its own findings of fact regarding the employee’s conduct.[38]Section 98(4) poses a single question namely whether the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the Claimant. It requires the Tribunal to apply an objective standard to the reasonableness of the investigation, the procedure adopted and the decision itself. However, they are not separate questions – they all feed into the single question under section 98(4). Whilst an unfair dismissal case will often require a tribunal to consider what are referred to as ‘substantive’ and ‘procedural’ fairness it is important to recognise that the tribunal is not answering whether there has been ‘substantive’ or ‘procedural’ fairness as separate questions.[39]The approach to be taken when considering s98(4) is the well-known band of reasonable responses, summarised by the EAT in Iceland v Frozen Foods Ltd v Jones [1983] I.C.R. 17. The Tribunal must take as the starting point the words of s98(4). It must determine whether in the particular circumstances the decision to dismiss was within the band of reasonable responses which a reasonable employer might have adopted. In assessing the reasonableness of the response it must do so by reference to the objective standard of the hypothetical reasonable employer (Tayeh v Barchester Healthcare Ltd [2013] IRLR 387, CA @ para 49). The Tribunal must not substitute its own view as to what was the right course of action.[40]In misconduct cases, the approach which a Tribunal takes is guided by the well known decision of British Home Stores v Burchell [1978] IRLR 379, EAT. Once the employer has shown a valid reason for dismissal the Tribunal there are three questions:(i) Did the employer carry out a reasonable investigation?(ii) Did the employer believe that the employee was guilty of the conduct complained of?(iii) Did the employer have reasonable grounds for that belief?[41]In gross misconduct unfair dismissal cases, in determining the question of fairness, it is unnecessary for the Tribunal to embark on any analysis of whether the conduct for which the employee was dismissed amounts to gross misconduct. However, where an employer dismisses an employee for gross misconduct, it is relevant to ask whether the employer acted reasonably in characterising the conduct as gross misconduct – and this means inevitably asking whether the conduct for which the employee was dismissed was capable of amounting to gross misconduct – see Sandwell & West Birmingham Hospitals NHS Trust v Westwood (UKEAT/0032/09/LA) [2009] and Eastland Homes Partnership Ltd v Cunningham (EAT/0272/13). This means asking two questions:(1) is the conduct for which the employee was dismissed conduct which, looked at objectively, capable of amounting to gross misconduct, and Case Nos:2500800/2023 10(2) Did the employer act reasonably in characterising the conduct as gross misconduct? Fair procedures[42]A dismissal may be unfair because the employer has failed to follow a fair procedure. In considering whether an employer adopted a fair procedure, the range of reasonable responses test applies: Sainsbury plc v Hitt [2003] I.C.R. 111, CA. The fairness of a process which results in dismissal must be assessed overall. (3) Polkey[43]What is known as ‘the Polkey principle’ (Polkey v AD Dayton Services [1988] I.C.R. 142,HL) is an example of the application of section 123(1). Under this section the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer. A tribunal may reduce the compensatory award where the unfairly dismissed employee could have been dismissed fairly at a later stage or if a proper and fair procedure had been followed. Thus the ‘Polkey’ exercise is predictive in the sense that the Tribunal should consider whether the particular employer could have dismissed fairly and if so the chances whether it would have done so. The tribunal is not deciding the matter on balance. It is not to ask what it would have done if it were the employer. It is assessing the chances of what the actual employer would have done: Hill v Governing Body of Great Tey Primary School [2013] I.C.R. 691, EAT.[44]Whilst the Tribunal will undertake the exercise based on an evaluation of the evidence before it, the exercise almost inevitably involves a consideration of uncertainties and an element of speculation. The principles are most helpfully summarised in the judgment of Elias J (as he was) in Software 2000 Ltd v Andrews [2007] I.C.R. 825, EAT (paragraphs 53 and 54). Contributory conduct[45]If a dismissal is found to be unfair, under section 123(6) ERA where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it must reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding even in cases where the parties do not raise it as an issue (Swallow Security Services Ltd v Millicent [2009] ALL ER (D) 299, EAT). The relevant conduct must be culpable or blameworthy and (for the purposes of considering a reduction of the compensatory award) must have actually caused or contributed to the dismissal: Nelson v BBC (No2) [1980] I.C.R. 110, CA. Langstaff J offered tribunals some guidance in the case of Steen v ASP Packaging [2014] I.C.R. 56, EAT, namely that the following questions should be asked:(1) what was the conduct in question?(2) was it blameworthy?(3) did it cause or contribute to Case Nos:2500800/2023 11 the dismissal? (for the purposes of the compensatory award)(4) to what extent should the award be reduced?[46]There is an equivalent provision for reduction of the basic award, section 122(2) which states that ‘where the tribunal considers that any conduct of the complainant before the dismissal…was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly’. The tribunal has a wider discretion to reduce the basic award on grounds of any conduct of the employee prior to dismissal. It is not limited to conduct which has caused or contributed to the dismissal. Discussion and conclusions Reason for dismissal
Discussion and conclusions
[47]The reason given by the Respondent in this case is set out in the letter from Ms Haley, that is that Ms Haley believed that since the beginning of 2022, the Claimant had repeatedly failed to implement and adhere to the standards of safeguarding required of her.[48]As indicated, the Respondent did not call Ms Haley to give evidence. Although at first, I was told there was no reason (Mr Langley, in fairness having been given none) I was then told, following Mr Haswell instructing Mr Langley, that the reason was legally privileged. I struggled to understand how the question that I asked, namely ‘is there a reason I am not hearing from the decision maker’ could produce the answer ‘that is legally privileged’. Nevertheless, that was the Respondent’s position. Sometimes a decision maker has moved on from an employer’s employment and has refused to cooperate or is ill and unable to attend. However, I was given no such explanations. Not only did the Respondent not call the decision maker it did not call the appeal officer or involved in the investigation (Mr McNaught). Nor did it call anyone (in particular, Lisa Naisbitt) to seek to make good its argument that the Claimant had contributed to or caused her own dismissal by her conduct. Rather, it called Mr Haswell, who according to him was not involved at all in the investigation, decision-making or appeal.[49]This meant that the Tribunal and, moreover, the Claimant was deprived of hearing from the decision-maker and deprived of the opportunity to challenge the decision-maker as to her reason for dismissing the Claimant and to test its reasonableness. Thus, Mr Parsons-Munn’s submission that he was in a difficult position to gainsay the reason for that very fact.[50]He is right to be troubled by this. I was. It is for an employer to prove the reason for dismissal. Ordinarily, one expects this to be by way of evidence from the decision maker, other in cases where there is good reason for their unavailability. It would be a disturbing development if employers felt that a manager could dismiss an employee and avoid calling the manager by proffering a vague reference to legal privilege. That said, I Case Nos:2500800/2023 12 accepted Mr Langley’s submission that it is not essential in an unfair dismissal case that an employer call the decision maker in order to establish the genuine reason for dismissal. In the absence of Ms Haley, the best evidence as to her reason is the letter of dismissal. In that letter, she says this: “It is clear that you have attended a number of Safeguarding training sessions. It is also clear by your own admission that you know how to make contact with the safeguarding team. However, you failed on repeated occasions to submit a safeguarding concern to the local authority safeguarding team. You did place these concerns by your own admission into a safeguarding file. Therefore, acknowledging that it was indeed a safeguarding concern.”[51]Going by the letter then, it appears that Ms Haley believed that the Claimant failed on repeated occasions to submit a safeguarding concern to the local authority safeguarding team and that this resulted in her dismissal in that, by failing to report such concerns, she failed to keep customers, staff and bluebird care safe, failed to report concerns under her legislative duty within the Care Act 2014 to raise concerns regarding adults at risk.[52]Although I had real reservations given the absence of the decision maker (allied to other concerns about late and incomplete disclosure by the Respondent in these proceedings) I concluded that the reason as set out in Ms Haley’s letter of dismissal was indeed the genuine reason for dismissing the Claimant. I acknowledge the difficulties faced by the Claimant and was conscious of Mr Parsons-Munn’s submission regarding the difficulty in gainsaying the reason in such circumstances. The obvious temptation in a case such as this is to conclude that the Respondent has not established the reason because it has failed to call the decision-maker. However, that would in my judgement be the wrong approach. I have taken account of the absence of the decision maker but that, of itself, cannot be determinative. Although the burden is on the employer to establish the reason, if an employee wishes to cast doubt on the real reason for dismissal, there must be ‘some’ evidence pointing in that direction. I was not taken to any and Mr Parsons-Munn made no submission that I should look to any particular piece of evidence. The authorities suggest that the burden at this stage is not a heavy one. Despite my reservations I was just about satisfied that the Respondent has shown that the reason for dismissal was as set out in the letter of dismissal and that the reason related to conduct and thus a potentially fair reason for dismissal. Reasonableness of decision to dismiss – investigation and procedure[53]Referring back to the legal principles in paragraph 38 above, although it is helpful to consider substantive and procedural aspects of the dismissal separately, I must stand back and look at the overall picture to answer that single question posed by section 98(4). It is at this stage where the absence of anyone involved in the investigation into the allegations and decision-making process has created particular difficulties.[54]Relevant questions in assessing the reasonableness in this case are: Case Nos:2500800/2023 13 l. Whether the investigator or decision-maker cross-referred the spreadsheet to the customers’ files. m. Why a statement taken from Lisa Naisbitt was not disclosed to the Claimant during the disciplinary process. n. Why the other documents referred to in paragraph 6 of the investigating report [page 385], which included the ‘safeguarding policy’ were not disclosed to the Claimant during the disciplinary process. o. Whether the decision-maker considered and/or determined where responsibility for reporting safeguarding concerns to the local authority safeguarding team lay (i.e. as between the Claimant, Lynn Boll, Lisa Naisbitt or David Haswell). p. Which occasions did the decision-maker have in mind when she referred to a failure to submit a safeguarding concern on ‘multiple occasions’. q. Whether, in relation to those occasions, she actually considered if they were reportable and if so, whether they had subsequently been reported. r. If Hs Haley believed the Claimant to have a responsibility to report to the local authority, whether Ms Haley considered the nature of the training she had was sufficient to enable her to understand this responsibility and to put it into effect. s. Whether Ms Haley considered this was more a training issue as opposed to a conduct issue. t. Whether Ms Haley considered any alternatives to summary dismissal such as a written warning with training.[55]These questions are important because the go to the reasonableness of the investigation and the reasonableness of the belief that the Claimant had committed misconduct. As stated above, allegation 2 was the allegation which resulted in the Claimant’s dismissal. That allegation was framed broadly. It simply alleged that the Claimant ‘had repeatedly failed to implement and adhere to the standard required’. It was not an allegation that the Claimant, being the person with sole or joint responsibility for making referrals to the local authority (or CQC) failed, in dereliction of that duty, to make referrals.[56]In assessing the reasonableness of the sanction, it is essential to understand what the decision maker believed to be the particular failures, how serious those failures were and why she considered dismissal a reasonable response.[57]I conclude that Ms Haley did not, in fact, give consideration to any of the questions I have posed above. If anything, she appears to have recognised that Lynn Boll was the person who was responsible and accountable for reporting of safeguarding (were any of these actually reportable). Case Nos:2500800/2023 14[58]I do not accept Mr Langley’s submission that the Claimant made admissions that she was the safeguarding lead and that she understood this and had failed to report. That is a misreading of what the claimant was saying taking her interviews as a whole.[59]I agree with Mr Parsons-Munn that there were significant shortcomings in the investigation:a. the failure to disclose documents.b. the failure to identify with some precision the allegation of failing to fulfil a responsibility to report andc. the matters outlined in paragraph 22 and 25 of his opening submissions.[60]These failings were outside the band of reasonable responses, in that a reasonable employer would have disclosed the documents relied on and would have endeavoured to be more precise as to what precisely was being said about the Claimant’s specific responsibilities and her alleged failings in those regards. The failure to do so deprived the Claimant of the ability to point, for example, to the safeguarding policy where it identified Lynn Boll as safeguarding person. This would then have informed Ms Haley’s decision making. Even if Ms Haley genuinely believed the claimant to have failed in her responsibility, I am satisfied that her belief was not a reasonably held one.[61]There was also a perfunctory analysis of the spreadsheet as is apparent from the notes of the disciplinary hearing. There is no indication at all from the letter of dismissal that Ms Haley gave any proper consideration to the entries, referring simply to ‘multiple occasions’. I also conclude that Mr Thompson’s disregard of the two statements advanced on the Claimant’s behalf as being ‘invalid’ as being outside the band of reasonable responses. Had he considered those statements, in light of the fact that Lynn Boll was named on the safeguarding policy, he might have arrived at a different conclusion. This very much suggests that he did not consider the safeguarding policy either where Lynn Boll was identified.[62]As to sanction, I conclude that dismissal was outside the range of reasonable responses:a. Ms Haley did not consider any alternatives (that is clear from her letter of dismissal).b. Ms Haley did not attempt to identify the degree of seriousness of each matter on the spreadsheet and then to obtain any understanding of the Claimant’s role in each matter.c. Given the Claimant’s job description and the fact that the Registered manager is the person responsible for reporting (see regulation 18 Care Quality Commission Registration Regulations 2009, and given the failure to distinguish between the Case Nos:2500800/2023 15 Claimant’s role and Mrs Boll’s, the absence of any contractual obligation on the claimant, the decision to characterise this as gross misconduct was unreasonable.d. I conclude that Ms Haley simply arrived at the decision to dismiss because the allegation had been ‘deemed’ to be gross misconduct, without applying her mind to the actual degree of seriousness of the matters before her.[63]In light of the unreasonableness of the investigation and the lack of reasonable belief in the claimant’s conduct, the decision to dismiss the claimant was unfair.[64]I now turn to other aspects: Polkey and Contributory Conduct Polkey[65]I remind myself of the law in paragraphs 43 and 44 above. A tribunal should consider whether the particular employer could have dismissed fairly and if so the chances whether it would have done so. There is no bright line between procedural and substantive unfairness. I must consider whether the Respondent could have fairly dismissed had it acted as a reasonable employer would have, and what are the chances that it would have fairly dismissed the Claimant.[66]Having carefully considered the matter, I make no Polkey reduction in this case. The Respondent has adduced no evidence as to what a fair hearing would have looked like. Drawing from the papers and evidence before me, it seems to me that had the safeguarding policy been provided as requested by the Claimant, Ms Haley would have seen that she was quite right: that Lynn Boll was indeed the designated person. She would have seen from a properly investigated process, having compared the spreadsheet with the actual files, that – as the Claimant set out in her witness statement – most of these matters were not reportable matters at all. She would have appreciated that the Respondent’s paperwork is all over the place and that the Claimant was, as she put it at the disciplinary hearing, expected to be a ‘jack of all trades’. Had Mr Thompson considered the two witness statements he would have appreciated that what Lyn Boll was saying was consistent with the policy (paragraph 61 above). Doing the best I can, it seems to me that on this proper consideration, this employer acting fairly and reasonably would not have dismissed the Claimant, at least not fairly dismissed her. Contributory conduct[67]I do not make any reduction for contributory fault. In light of my findings of fact, the Claimant did not contribute towards or cause her own dismissal. The Respondent has set its colours very firmly to the mast. This was, it maintained, misconduct on her part. It has failed to establish that she had the responsibilities claimed and that she failed to act on them. Case Nos:2500800/2023 16[68]Moreover, on the evidence it has come nowhere near establishing that the claimant put the business at the risk of any criminal conviction or that she has failed to adhere to her legislative duties – Mr Langley did not know what those legislative duties were. Insofar as they may have been referable to regulation 18, that is palpably not the case as this relates to the registered manager.I have heard nothing about the Care Act 2014.
REMEDY
[69]In light of my conclusions the Claimant is entitled to an award of compensation. BASIC AWARD[70]The basic award is £3,426 COMPENSATORY AWARD[71]At the date of dismissal, the Claimant’s net monthly pay was £2,658.64. Had she not been dismissed, she would have left the employment of the Respondent in any event. I accept that she would not have done so until she was in a position to find alternative employment. She was able to obtain employment by 01 March 2023 but at a much lower salary. It is likely that she would have sought more remunerative work had she not been dismissed – I consider that she would have left within six months or so. Therefore, her compensatory award is limited to the period 14 November 2022 to the end of May 2023. I am satisfied and so find that she would have left the employment of the Respondent by then.[72]Therefore, her full losses are from 14 November 2022 to 01 March 2023. Her losses from 01 March 2023 to 31 May 2023 are her net monthly earnings with the Respondent less her net monthly earnings at the new employer.[73]The parties asked for time to discuss the appropriate amounts. Upon their return, counsel confirmed that they had agreed an amount for the compensatory award, being £14,363.77 subject to an award in respect of statutory loss, which they invited me to make. I awarded £500 in respect of the loss of statutory rights, bringing the total compensatory award to: £14,863.77.[74]Therefore, the total amount the Respondent was ordered to pay was £18,289.77 .