Mrs R Mumbuluma v Sonnet Care Homes (Essex) Ltd: 3200034/2018

EMPLOYMENT TRIBUNALS

Case No 3200034/2018

Between

Mrs R MumbulumaClaimant

Sonnet Care Homes (Essex) LtdRespondent

Before

Employment Judge Jones

Mr R Stubbs (instructed by Counsel) for respondent

Date 1 May 2019

JUDGMENT

The judgment of the Employment Tribunal is that: -(1) The Claimant was fairly dismissed.

(2) The claim is dismissed.

REASONS

[1]The Claimant had been employed by the Respondent as Staff Nurse for nightshifts at St Mary’s Court, which is a care home with residents with early onset dementia, older person’s dementia and general nursing care.

[2]The Respondent is a company operating two care homes in Essex. As the care services provider, the Respondent is subject to strict statutory controls under the provisions of the Care Standards Act 2000, which are monitored closely by the Care Quality Commission (CQC). The CQC has far reaching powers to close care homes which do not achieve a sufficient standard or where there are breaches of the statutory regime.

[3]The Claimant brought these unfair dismissal proceedings because she was dismissed by the Respondent for gross misconduct.

[4]The Claimant wrote to the Tribunal on 14 September seeking to add documents to the bundle for the Tribunal’s consideration at today’s hearing. The Respondent objected to the inclusion of those documents. The matter was left to be dealt with at today’s hearing.

[5]At the start of today’s hearing, Mr Kandemiiri indicated that the Claimant was not pursuing the application for the additional documents to be added to the bundle. He agreed that he was happy to progress with the hearing without those documents. The Tribunal therefore did not consider the application.

[6]At a preliminary hearing on 9 August 2018 before Employment Judge Goodrich, the issues to be determined at this hearing were confirmed as follows: -

[7]The Respondent contends that conduct was the reason or principal reason for the Claimant’s dismissal and that she was dismissed for gross misconduct because of:7.1 Neglecting the needs of a resident by failing to appropriately allocate one- to-one care; and

7.2 Leaving a resident alone who required one-to-one care and who subsequently fell and was hospitalised.

[8]The Claimant does not admit that conduct was the reason or principal reason for her dismissal.

[9]It is the Claimant’s contention that the Respondent did not have reasonable grounds for its belief that she had conducted acts of misconduct or gross misconduct or that dismissal was a fair sanction. It was her case that the Respondent had a predetermined intention to dismiss her.

[10]If the Tribunal were to hold that the Claimant’s dismissal was procedurally or substantively unfair, or both, the Respondent would contend that the Claimant would or might have been dismissed if fair procedures had been followed and that the Claimant caused or contributed to her dismissal by her conduct.

[11]If successful in her unfair dismissal claim, the Claimant seeks re-instatement or re-engagement with the Respondent together with compensation. The Respondent indicated that it would resist any such orders.

[12]The Tribunal apologises to the parties for the regrettable delay in the promulgation of this judgment and reasons. This was due to the pressure of work on the judge.

Evidence

[13]The Tribunal heard from the Claimant on her own behalf and from Ms Perreira, Unit Manager and Investigation Officer; Terri Pike, Manager of St Mary’s Court who chaired the disciplinary hearing and Julia Clinton, the Respondent’s Chief Executive who heard the Claimant’s appeal against dismissal.

[14]The Tribunal also had an agreed bundle of documents.

[15]From the evidence, the Tribunal made the following findings of fact. The Tribunal has only made findings of fact on the matters necessary to determine the issues in this case.

Findings of fact

[16]The Claimant is a Staff Nurse and has been so since 1980. The Claimant worked for the Respondent as a night Staff Nurse from 22 September 2013 to 21 September 2017. The Claimant was interviewed for the post in 2013 by Terri Pike, manager of the home. Her first impression of the Claimant was that she was an experienced nurse and a kind, caring person with experience in caring for older people.

[17]The Respondent operates St Mary’s Court, which is a care home. The home has been consistently rated ‘good’ in all categories by the CQC, save in the ‘well led’ category, where it is rated as ‘outstanding’. It can provide accommodation and personal care for up to 89 people. At the time of the hearing there were 80 residents. Within St Mary’s Court there are 3 separate floors providing care for different categories of care, namely, early onset dementia, older persons dementia and general nursing care. The home employs 110 employees. The home is divided into 4 units. Two units on the first-floor care for older persons with dementia, one on the lower ground floor cares for residents with early onset dementia, and the other ground floor unit is for general nursing.

[18]As a staff nurse at night, the Claimant was in charge of the ground floor general nursing unit within St Mary’s Court. She would normally take handover from the day staff and from then would be responsible for the care and welfare of up to 30 frail elderly persons for the duration of her shift. Her tasks would include looking after the residents, giving them their medications as prescribed and supervising and allocating roles to the night staff. The Claimant worked between three and five nights per week during her employment. Over the years, she applied to increase or decrease the number of nights she worked.

[19]Ms Perreira’s evidence was that in the four weeks running up to 13 August 2017, the Claimant worked four nights a week. One important aspect of the Claimant’s role was the appropriate allocation of subordinate care staff to service users during the shift. This was her responsibility as she oversaw the shift. Carers are the most junior members of staff.

[20]Many vulnerable adults cared for by the Respondent required some type of “one-to-one” care. For example, one vulnerable adult cared for by the Respondent, JH, required one-to-one care because she was at high risk of falls during her waking hours. However, once in bed at night she generally fell asleep quickly and did not wake up until the morning.

[21]At that time, in the summer of 2017, Ms Perreira’s evidence was that JH’s sleeping pattern would be to go to bed at around 9pm and wake up after 10am. That meant that her one-to-one care would be needed from 10am to 10pm. In contrast, another resident, MG, who was also at risk of falls but far less predictable, required one-to-one care 24 hours a day. There was a danger of him waking and leaving his room during the night. It was not necessary for the same carer to provide the one-toone care for the duration of a shift.

[22]One of the points of dispute in the case was whether the Respondent had sufficient staff on the night of 13 August 2017. It was the Claimant’s case that there was insufficient staff for the number of residents in at the home. The Respondent’s case was that there was sufficient staff for the number of residents.

[23]The Tribunal finds that on the night of 13 August 2017, there were 29 residents in the unit. There were two residents, JH and MG who required one-to-one care as set out above. The care team comprised the Claimant plus four carers. Once she had allocated jobs to the carers, the Claimant, as staff nurse, was expected to assist the team in looking after the residents.

[24]Given JH’s normal bedtime i.e. between the hours of 8pm and 10pm, the general nursing unit which the Claimant was in charge of, had two residents requiring one-to-one care which would leave three staff for the remaining 27 residents, a ratio of 1:9. Between 10pm and 8am, the general nursing unit had one resident with one-toone needs which left four staff for the remaining 28 residents which would be a ratio of 1:7 as JH would be asleep by now. Since most of the other residents would be sleeping during that time, the actual need for carers during those hours was likely to be less than the same period of time during the day. This means that most of the residents would not need care during the night shift.

[25]Ms Perreira handed over to the Claimant at the start of the night shift that day as in addition to being the unit manager, had been the nurse on duty for the day shift. Staff changeover happens at 8pm. The Respondent’s practice was that at 8pm, once she had taken over, the nurse in charge of the nightshift would allocate two care staff to take over the one-to-one care from the day staff in relation to the residents who required it. All staff would attend a short handover meeting with the nurse in charge of the dayshift and the senior carer of the dayshift so that they would be aware of any issues that had arisen during the day or that might arise during the night. The day staff would also complete a written handover sheet for their reference and for the files.

[26]The Tribunal finds that handover would usually last about 20 minutes. It could be shortened if there was an emergency but it was important that the dayshift handover to the nightshift. The day nurse would check the controlled drugs with the night nurse before leaving. The night nurse would check all the residents and by the time the day staff left, she should commence the medication administration round.

[27]The Respondent expected the staff nurse to support the care team between 11pm and 6am to provide all necessary care interventions. If a resident became unwell during the night, it would be the night staff nurse’s duty to manage care and seek support from the out of hours doctor or the emergency services, as necessary. There were other management jobs which the staff nurse would need to complete when necessary such as care plan reviews, care staff supervisions, stock count and medical equipment checks. The nurse would need to make a written entry for every resident in the senior daily notes before carrying out the early morning medication administration at 7am. At 8am the staff nurse would give verbal handover to the day staff and would check the control drugs with the dayshift nurse once more, before going off duty.

[28]It was down to the Claimant to manage the staff available to her on a nightshift. It was her responsibility to allocate them appropriately so that all the jobs that had to be done on the shift were covered. The Claimant did not ask for more staff that evening.

[29]The Respondent confirmed that it was paid a premium by the Clinical Commissioning Group (CCG) to provide residents with one-to-one care where a medical or other assessment noted it as a requirement in providing care to that resident. Ms Pike confirmed that the words ‘one-to-one’ meant exactly that and that the Respondent would not allocate 1 person to look after two residents who required one-to-one care. The requirement to provide one-to-one care would be noted in a resident’s care plan which the Claimant would look at in order to guide her in the allocation of resources on the shift. The Claimant knew that JH and MG required oneto-one care and she had looked after them previously at the home. They were not new residents.

[30]During the night of 13 August 2017, the Claimant was working the 8pm to 8:30am shift in the general nursing unit, caring for 29 residents with four subordinate carers. MG and JH were present and as stated above, they both required one-to-one care. Another resident known as JHz was also being cared for that night.

[31]The Tribunal had copies of allocation sheets for the 13 August in the bundle of documents. The sheets show that the Claimant wrote down the names of members of staff as she allocated them to various tasks. The sheets contain both the dayshifts and the evening shifts allocations. The day shift allocations were written in a different handwriting and were not done by the Claimant.

[32]On the evening of 13 August, Terri Pike received a telephone call from JH’s son who was concerned that his mother had fallen. He complained that the Claimant had told him that the carer who was doing the one-to-one care with another resident had also been caring for his mother and that the carer had left them to make a drink at the time the incident took place.

[33]When Ms Perreira arrived at work the next morning to start the dayshift, she attended handover with the Claimant at around 8am. The Claimant advised her that the service user, JH, had fallen during the night shift and that she had been taken to hospital. The Claimant also handed over an incident form on which she had written a summary of the events that had occurred that night. The Claimant then left as her shift had ended.

[34]The Tribunal had a copy of the incident record in the bundle of documents. On the form, the Claimant reports that the incident occurred in the dining room and that a carer, Ms Nuien Wainwright-Harrower, had been the other person who had been present. She recorded that after handover the staff member who had been allocated to one to one care of another resident, (who was likely to have been MG) was assisted to take all residents into the dining room so that she could monitor JH as well. She reported that she was told by the care staff that while she was attending to another resident, JH suddenly attempted to stand and slipped out of her wheelchair and fell on the floor on her left side. JH was conscious and when examined, she expressed pain on her left hip while at the same time holding her left thigh. After checking her vital signs, 999 was called and JH was left on the floor covered with a bedsheet. A member of staff stayed with her. The Claimant telephoned JH’s next of kin who was her son, at around 9.30pm and she recorded that JH’s son was not happy and he could not make sense of her report to him that the member of staff was looking after someone else was also monitoring his mother. The Claimant apologised to the resident’s son and assisted the ambulance when it arrived at 11.10pm. JH was taken to hospital for further investigation.

[35]When Ms Perreira read the Claimant’s incident report, it appeared to her to be incomplete and raised questions for her. She spoke to Ms Pike about it. When the Claimant arrived for work that evening, she asked the Claimant for further details. Ms Perreira was concerned that on reading the form, it appeared to suggest that the Claimant had allocated one carer for two residents who both required one-to-one care. The incident record said as follows: “After handover around 20.30 hours, the staff who was allocated to one to one care of another resident was assisted to take all the residents in the dining room so that she can monitor JH as well.”

[36]Ms Perreira discussed this matter with the Claimant to try and get a clear picture from her as to what occurred the previous evening. The Claimant indicated to her that Ms Wainwright-Harrower had been allocated to provide one-to-one care for both JH and MG on the same time evening. Ms Perreira was concerned about this and asked her to prepare a more detailed account of what had happened and what led up to JH falling over. The Claimant wrote a further account on a separate piece of paper and attached it to the incident form. A copy of this document was in the bundle of document at page 116. The Claimant handed this document to Ms Perreira on 15 August 2017.

[37]In that second statement, the Claimant referred to a member of staff cancelling a shift and confirmed that JH was brought to the care station for close observation and after handover, at around 8.30pm, the staff who was allocated to one-to-one care of another resident was assisted to take all residents in the dining room so that she can monitor JH as well.

[38]In the daily progress sheet for the shift on 13 August, Ms Nuien WainwrightHarrower made a note of what had happened during the night. She wrote that JH was taken to the dining room along with two other residents and offered sandwiches and a cup of hot chocolate. JH was also given her medication. She was calm and resting in her wheelchair, in the dining room. Then at around 9.25pm, she suddenly attempted to stand and slipped off her wheelchair. The carer at the time was attending and making another resident comfortable as he complained of discomfort. The nurse and the other carers were called instantly for help. JH was taken to hospital for further assessment accompanied by a care staff. She was still in the hospital on 15 August.

[39]Ms Perreira’s evidence was that Ms Wainwright-Harrower gave her the relevant daily progress sheet for the shift on 13 August. A few days later, Ms Perreira spoke to Ms Wainwright-Harrower to confirm what she had written. She confirmed it and left the room. She spoke to Ms Holcombe as she was worried that what she had written and confirmed was inaccurate. Ms Holcombe encouraged her to tell the truth and say what really happened. Ms Wainwright-Harrower returned to Ms Perreira a few moments later to say that the note that she had made in the daily progress report was incorrect and was not true. She informed Ms Perreira that she felt pressurised by the Claimant. She said that the Claimant had said that it was unfair for just one person to take the blame for what had happened and that the whole team should take blame. Ms Perreira asked Ms Wainwright-Harrower to write a full statement giving details of what happened. The statement she produced was on pages 118 to 121 of the bundle of documents.

[40]In her statement, Ms Wainwright-Harrower stated that she was the carer allocated to provide one-to-one care to MG that night and that around 8.30 she was asked to take JH and JHz into the dining room where she was so she could also look after them. She acknowledged that JH and MG both required one-to-one care. She stated that the Claimant gave MG medication. MG complained of discomfort and asked to be put to bed so she called the Claimant and asked her to allocate another member of staff to look after JH and JHz while she was gone. She believed that the Claimant heard and understood what she said. Karen Holcombe assisted her in taking MG to bed while the Claimant stayed with JH and JHz. While putting MG to bed, she saw two other carers taking JHz back to his bedroom. She stated that as they were putting the residents to bed upstairs they heard JH shouting from the dining room. They rushed to check on her and found her on the floor calling for help. The statement recorded that it was then that the Claimant came into the room. Ms WainwrightHarrower confirmed that she did not see which direction the Claimant came from.

[41]Ms Wainwright-Harrower made the following statement: “Later Regina came to his room and told me how to write the report from my side so I don’t get blame. I was a little disappointed and confused when she said that because I did try my best to be in a situation where JH was not to be left alone and I did discussed (sic) it with her about MG”.

[42]Ms Wainwright-Harrower wrote that she did not agree or disagree with what the Claimant had asked her to do but just went along with it and summarised her report in the daily progress sheets. She apologised to the Respondent for doing so. She stated that she understood that the Claimant had been distressed and pressurised by the incident and when the Claimant pointed out to her that she will also get blamed for what had happened, she got very stressed and disturbed about it and that influenced how she wrote the initial report.

[43]We find it highly likely that Ms Wainwright-Harrower wrote this statement on her own with no assistance from Ms Perreira or any other member of staff at St Mary’s Court.

[44]On 15 August, Ms Perreira wrote an email to Ms Pike, the home manager, in which she gave her further information. She reported on a discussion that she had had with Ms Wainwright-Harrower about whether the belt in JH’s wheelchair ought to have been secured and whether it was working. She then reported that Ms WainwrightHarrower told her that she left the room to put MG to bed as he had been uncomfortable and the Claimant stated that she just needed to get the meds and that she would help. Ms Perreira told Ms Pike that Ms Wainwright-Harrower had said that the version she had given in the daily progress report was all lies and that she was sorry but had felt intimidated by the Claimant. Ms Perreira informed Ms Pike that Ms Holcombe and another carer had confirmed the revised statement given by Ms Wainwright-Harrower. The picture of what occurred now looked to her as follows: the Claimant had been left in the dining room caring for JH and she had left the room with no other staff present, which is when JH fell. Ms Perreira was going to continue with her investigation and speak to the other members of staff who had been working that night but stated that it looked as though the Claimant had falsified documentation in writing a report that was not completely true and had given the family false information in the telephone call with JH’s son.

[45]In her written statement Ms Holcombe confirmed that on the night, Ms Wainwright-Harrower had been in the dining room with three residents, MB, JHz and JH. She stated that Ms Wainwright-Harrower asked her to assist in putting MG to bed and she did so. She believed that at the time they left with MG, the Claimant was giving JH some medication. Marcin came to help them which allowed her to leave Ms Wainwright-Harrower with MG in his room and answer another resident’s buzzer. Marcin eventually went to assist that resident. The resident continued to buzz. The carers agreed between them that Ms Wainwright-Harrower would attend the resident who continued to buzz, while she sat with MB. Ms Wainwright-Harrower then returned to MB’s room. Ms Holcombe was about to go to the kitchen to start drinks when she heard JH calling from the dining room. She ran to the living room and found JH on the floor in the dining room lying on her side. JH was alone. She called out and Ms Wainwright-Harrower arrived within seconds. She stated that the Claimant arrived within a minute although she had no idea where from. She confirmed that when they left the dining room to put MG to bed the Claimant was in the dining room with JH and JHz.

[46]On 16 August, Ms Perreira met with the Claimant with Ms Marston the Respondent’s HR manager, present. In the original notes taken from that meeting the Claimant is recorded as stating that Ms Wainwright-Harrower had been in the dining room with 3 residents. The Claimant stated that she had been doing the meds rounds and that she explained to JH’s relative after the incident that Ms Wainwright-Harrower had been looking after two people and that Ms Wainwriht-Harrower had turned her back on JH. The relative had been told that she had gone to make tea. The Claimant denied that she had agreed to stay with JH and stated that Ms Wainwright-Harrower had not told her that she was taking MB to bed. She denied leaving the dining room and stated that when she returned to the meds trolley Ms Wainwright-Harrower was in the dining room.

[47]The interview notes show that the Claimant confirmed that she had a conversation with Ms Wainwright-Harrower about her entry in the daily progress sheets. The Claimant stated that she told her how to write it so that she would not get the blame but she had not told her what to write.

[48]Ms Holcombe’s further witness statement also confirmed that when she and Ms Wainwright-Harrower took MG to his room, they left JH and JHz with the Claimant in the dining room. She confirmed that she subsequently heard someone shouting for help, ran into the dining room and discovered JH on the floor in the dining room on her left side. About half a minute later, the Claimant appeared.

[49]The Claimant’s evidence to the Tribunal was that she was doing her medication rounds when Ms Holcombe came to tell her that JH had fallen and she then locked up the medication trolley and put it away before rushing to the scene where she found Ms Wainwright-Harrower with JH on the floor.

[50]At the end of the meeting, Ms Perreira advised the Claimant that she was being suspended. The Claimant was advised that the way she had conducted the shift that night had led to the neglect of a resident, put another resident’s safety at risk and that these were serious issues. A safeguarding has been raised against the home. She also told the Claimant that she had allegedly intimidated a junior member of staff to lie to cover up what had happened. The note records that she was told that the allegations against her were the following: -50.1 Neglecting the needs of the resident by not ensuring 1:1 care during the nightshift on Sunday 13 August 2017 which led to the resident JH falling and being hospitalised.

50.2 Falsifying the incident report and intimidating a junior member of staff to provide a false representation of the incident.

50.3 Providing false and misleading information to the resident’s family about the incident.

[51]The Claimant was also given a letter explaining the terms of her suspension. The letter confirmed that the suspension was with immediate effect and with pay, pending the results of the investigation. She was told that the suspension was in accordance with the Safeguarding Adults Scheme and that if she were to be disciplined as a result of the investigation and dismissed, it was likely that the Respondent would have to provide details of what happened to the Disclosure and Barring Service (DBS) for their consideration. If her name was added to the barred list it would prohibit her from working with any person considered to be vulnerable. If the DBS was considering doing so they would contact the Claimant directly as it was their sole decision.

[52]The letter informed the Claimant that she had to return her key fob and swipe card to the Respondent and that during her suspension she should remain available for work, ensure that she did not work for anyone else. During her suspension she could apply for annual leave and must notify her employer if she became ill.

[53]Ms Perreira continued with her investigation. She met again with Ms Holcombe on 16 August, as well as other carers called Rasa, Marcin and Ms WainwrightHarrower on 22 August. Those were all the carers who worked that night shift. After considering all the evidence that she had gathered from the witnesses, Ms Perreira wrote an investigation report which she presented to the Respondent.

[54]In the report, she concluded that all the evidence confirmed that Ms WainwrightHarrower had been allocated to give one-to-one care to MG and that two other residents, JH and JHz had been taken with MG to the dining room after handover for Ms Wainwright-Harrower to monitor all three residents. She was in effect asked to provide one-to-one care to two residents who both needed one-to-one care during the night. All four carers confirmed in their statements and in their evidence that the Claimant had been with JH in the dining room when Ms Wainwright-Harrower took MG to his room. Ms Perreira concluded that it was highly likely that when JH shouted after she fell, Ms Wainwright-Harrower and Ms Holcombe both ran to the dining room where they met JH on the floor. She was in the room on her own. The care staff all stated that it was after they arrived in the room that the Claimant came to the dining room from another part of the home. None of them had seen her on their way to the dining room.

[55]From her investigation, Ms Perreira concluded that the Claimant had been the last member of staff with JH and that she had left her unattended at the time of the accident. The Claimant had given a different version of events on the accident report form from what she had written in the senior records and what she informed JH’s family. Ms Perreira concluded that the Claimant had made false statements in the records and misrepresented the circumstances of the accident to JH’s next of kin. She also concluded that although the Claimant denied placing any pressure on Ms Wainwright-Harrower to make a false written entry in the daily progress sheets, Ms Wainwright-Harrower had consistently stated that she felt intimidated to do so and, having realised the consequences of her actions, took appropriate steps to rectify this.

[56]Ms Wainwright-Harrower had not written a full report at the time of the incident but had simply written in the daily progress sheets. It would not be the carer’s responsibility to do an incident report if an incident occurred. It would be the responsibility of the most senior member of staff on duty, which in this instance was the Claimant.

[57]After conducting her investigation, Ms Perreira chose to believe the contents of the statement produced by Ms Wainwright-Harrower rather than the initial record on the daily progress sheet. She found the contents of that statement to be consistent with the evidence given by the other carers.

[58]On 29 August 2017, the Respondent wrote to the Tribunal to invite her to a disciplinary hearing scheduled for 5 September 2017. The Claimant’s RCN (Royal College of Nursing) representative was not available on that day so the matter was rescheduled for Wednesday 13 September. The Claimant was advised that if she could not make that appointment she should contact Terri Pike as a matter of urgency and that failure to attend without good reason could result in the hearing being held and a decision being taken in her absence.

[59]Ms Pike was aware from speaking to Ms Perreira on 14 August that she had questions about the incident form that the Claimant had completed.

[60]Ms Perreira had also told Ms Pike of her initial concerns at the start of the investigation in the email dated 15 August referred to above. Ms Pike had not made any decisions in relation to this matter and there was no evidence that she knew the full details of the allegations or the Claimant’s case before conducting the disciplinary hearing.

[61]Ms Pike decided that she should conduct the disciplinary hearing into the allegations of misconduct against the Claimant. Ms Pike was the registered manager with full responsibility for the home and the Claimant was a senior employee. The allegations against her were serious and the Respondent considered that the most senior manager in the home should conduct the hearing.

[62]The initial letter of invitation to the disciplinary hearing to the Claimant was dated 24 August 2017 and set out the allegations against the Claimant, which were as follows: -62.1 Neglecting the needs of a resident by failing to appropriately allocate a one-to-one care.

62.2 Leaving a resident alone who required one-to-one care who subsequently fell and was hospitalised.

62.3 Falsification of information recorded in the resident’s care plan and the accident record.

62.4 Intimidation of a junior member of staff.

62.5 Providing false and misleading information to the resident’s family about the incident and consequently putting the good name of St Mary’s Court at risk.

[63]The letter enclosed all the documents and statements gleaned by Ms Perreira in her investigation. The Claimant was advised that if she wished to submit a written statement for consideration in advance of the hearing, she should send this to Ms Pike at St Mary’s Court. She was advised that at the hearing she would be given opportunity to fully explain her case, answer allegations, ask questions, dispute evidence, provide her own evidence and otherwise argue her case. She could also put forward any mitigating factors which she considered relevant. She was advised that the disciplinary hearing would be chaired by Terri Pike and that Ms Perreira would attend to present the investigation. Ms Marston, HR manager would be present to take notes of the hearing. The Claimant was advised of her right to be accompanied and the Respondent enclosed a copy of its disciplinary procedure with the invitation letter. The Claimant was advised that as the Respondent considered that the allegations against her added up to gross misconduct offences, the outcome of the disciplinary hearing could be her summary dismissal from employment in accordance with the company’s disciplinary procedure. The Claimant was unable to make the first date set for the disciplinary hearing and it was rearranged.

[64]On 11 September, the Claimant’s trade union representative, Alex Watts of RCN, wrote to the Respondent by email submitting the Claimant’s resignation from her position because of the stress of the forthcoming disciplinary hearing. The Claimant wished to resign with immediate effect. Ms Marston replied by email to acknowledge that the procedure would be stressful but that the Respondent was duty bound to continue with the disciplinary hearing. The process would not end with the Claimant’s resignation. This was because of the allegation that a resident had been placed at risk. The Respondent stated that if the Claimant did not attend the hearing, it would be held in her absence and a decision would be made based on the evidence currently before the Respondent. As a result, the Claimant’s representative replied to confirm that the Claimant would attend the disciplinary hearing.

[65]The disciplinary hearing took place on 13 September chaired by Ms Pike with Ms Marston and Ms Perreira in attendance. The Claimant attended the disciplinary hearing accompanied by Mr Watts. There was an agenda for the meeting which was in the bundle at page 169. During the hearing, two witnesses, Ms Holcombe and Marcin were available to address any issues in their evidence. The evidence in the investigation report was considered. The Claimant had an opportunity to ask questions about it and discuss its contents. The Claimant disputed the version of events in the witness statements but she agreed that Ms Wainwright-Harrower had been allocated to care for JH along with another resident, both of whom required one-to-one care. She agreed that JH should have had one-to-one care but had not been given it. It was therefore recorded that she accepted allegations 1 and 2 but rejected the balance. The Claimant denied that she should have managed her shift better and allocated a different carer to each resident. At the hearing, the Claimant stated that the witnesses colluded against her. She did not give a reason why they would do so and at the same time, she agreed that she had a good working relationship with all of them. The Claimant’s representative requested the opportunity to question Ms WainwrightHarrower about her statement. It is her case that the Respondent was reluctant to do so. However, as Ms Wainwright-Harrower was not available on that day, the disciplinary hearing was adjourned to allow the Claimant to be able to do so on a different day.

[66]The re-scheduled disciplinary hearing took place on 21 September. The Claimant given full opportunity to respond to the allegations against her and to question Ms Wainwright-Harrower. Ms Pike found Ms Wainwright-Harrower to be a credible witness and noted that she gave her evidence without any hesitation. She admitted that the report on the daily progress sheets had not been accurate as she had been in MG’s room at the time that JH fell. She said that she had written what the Claimant told her to write. She said that the Claimant told her that no one should be blamed for what happened and she should write the report this way. Later, the Claimant told her that she had written her report and that Ms Wainwright-Harrower should just summarise it. In the resumed hearing Ms Wainwright-Harrower was able to give a full and detailed account of what happened that night, which corresponded to the full statement she gave to Ms Perreira after she admitted that the daily progress sheet was inaccurate.

[67]In her evidence to the Tribunal, Ms Pike confirmed that she chose to believe Ms Wainwright-Harrower’s explanation at the disciplinary hearing as to why she made the first incorrect notation in the daily progress sheets.

[68]At the end of the hearing, Ms Pike also concluded that it was likely that the contents of the witness statements given by the carers was true. She was not aware that any of the carers had previously had any issues with the Claimant and all had a good relationship with her. She considered them to be credible witnesses. There was no evidence of staff collusion against the Claimant. Ms Pike concluded that it was unlikely that Ms Wainwright-Harrower had been in the room with resident JH during the incident.

[69]The Claimant’s role within the business meant that she was responsible for allocating carers to provide one-to-one care for the residents who needed it. She concluded that the Claimant knew and understood the importance of one-to-one care and had been spoken to previously about the way staff should be allocated to residents with one-to-one care needs. There were some supervision notes in the bundle from a supervision meeting on 6 June 2017 where, even though part of the form had been redacted, clearly showed that among the action points for the Claimant from that meeting was a note that she should write the staff allocation on the allocation sheet, every night. There were allocation sheets in the bundle for shifts that she had completed so the Respondent concluded that she was aware of the need to make the allocations.

[70]The Claimant accepted in the disciplinary hearing that she had failed to allocate one-to-one care for the resident as she had allocated Ms Wainwright-Harrower to provide one-to-one care to MG and ‘keep an eye’ on JH, when they both required oneto-one care; which contributed to JH’s fall and subsequent injury. The Respondent were told that JH had sustained a bone fracture because of the fall. Ms Pike informed the Claimant at the end of the hearing of her conclusions.

[71]She informed the Claimant that it was likely that she would be dismissed and that the Respondent would have to report the matter to the NMC. She advised the Claimant about her right of appeal.

[72]In relation to the five allegations that the Claimant faced at the disciplinary hearing, the letter of 26 September set out Ms Pike’s decision in relation to each. Firstly, Ms Pike confirmed that there was insufficient proof that misleading information had been given to the resident’s family and that allegation was not upheld.

[73]It was Ms Pike’s conclusion, that Ms Wainwright-Harrower had not been intimidated by the Claimant. From her answers to the questions in the disciplinary hearing, Ms Pike concluded that Nuien was not very experienced and felt that as the Claimant was the experienced person and out of respect for her; she had taken the decision to back-up the Claimant’s version of events in her carer’s daily progress notes. Ms Wainwright-Harrower had not been forced into changing her evidence but had done so after speaking to Ms Perreira and telling her that the note in the daily progress sheet was inaccurate. The allegation of intimidation against the Claimant was not upheld.

[74]There was no decision on the allegation of falsification of records. However, the more serious allegations of neglecting the needs of a resident by failing to appropriately allocate one-to-one care for her and leaving the resident alone which resulted in her experiencing a fall and hospitalisation; were found proven. Ms Pike concluded that it was more likely than not that the Claimant was the last person with JH and that she had left her on her own after which she had fallen. Ms Pike concluded - after considering the statements from all the carers who had been working on the shift that night and the discussions in the hearing - that on balance, the Claimant had committed gross misconduct.

[75]Ms Pike confirmed that her decision was that the Claimant’s actions amounted to gross misconduct and that having considered the alternatives, it was also her decision that it was appropriate for the Respondent to apply the severest sanction an employer can take against an employee, which was dismissal. The Claimant was summarily dismissed with effect from 21 September 2017.

[76]In the Tribunal hearing Ms Pike confirmed that the Respondent should never allocate one person to look after two people who were to have one-to-one care. Each person who has a requirement for one-to-one care written in their care plan would be funded to a level that would pay for one-to-one care for a set number of hours per day. The staff nurse in charge of the shift would know that they must allocate someone to give one-to-one care to the individual resident, for a set number of hours. The Claimant knew which residents needed one-to-one care and for how many hours but had not provided it. She would have been able to do so with the staff on duty that night.

[77]Ms Pike believed that the evidence substantiated her conclusion that the Claimant had failed to properly allocate carers on the night of 13 August which meant that the resident had been left unattended which clearly played a significant role in the service user subsequently falling and injuring herself. This is what led her to make the decision to summarily dismiss the Claimant. It was the Claimant’s conduct in failing to care properly for the vulnerable adult in her charge which was considered sufficient to justify her dismissal.

[78]We had the Respondent’s staff handbook in the bundle of documents. The handbook set out a formal disciplinary process which defined dismissal without notice as summary dismissal. The matters that may justify summary dismissal included actions which may harm the wellbeing of a resident.

[79]The Claimant appealed against her dismissal. The Respondent also referred the Claimant to the NMC in relation to the Claimant’s fitness to practice and informed the CQC Essex Safeguarding Team about what had happened.

[80]The Claimant’s letter of appeal was dated 6 October 2017. The letter stated that there was insufficient consideration of her explanation of the circumstances leading up to the incident and that the charge that she failed to allocate a one-to-one carer to the service user could not be supported by the evidence. She challenged the Respondent for accepting Ms Wainwright-Harrower’s changed witness statement and referred to intimidation and falsifying information and records as the main reasons for her suspension and dismissal. She was shocked that the Respondent accepted Ms Wainwright-Harrower’s statement that she wrote the incident as she did initially, out of respect for the Claimant. The Claimant submitted that there was a predetermination to dismiss her, which was unfair. The Claimant submitted that dismissal was too harsh a penalty given the circumstances and expressed her belief that the Respondent had decided to dismiss her to show the resident’s family that it was being accountable as the one-to-one care is paid by the family. She also stated in her appeal that one-to-one care had never reflected in the staffing levels in the resident’s care package.

[81]The Claimant submitted that she had had a long service with the Respondent and that her previous disciplinary record was clear and that therefore the Respondent should have considered imposing a lesser sanction than dismissal.

[82]The Claimant’s appeal hearing was set down for Thursday 19 October and the Claimant was informed that the hearing will be chaired by Ms Clinton, the Respondent’s Chief Executive. As with the disciplinary hearing, the Claimant was given the right to be accompanied to the appeal hearing. She had already confirmed that she was going to be attending with Mr Watts, the RCN regional officer who had previously attended her disciplinary hearing.

[83]Ms Clinton was a registered general nurse as well as being the Respondent’s Chief Executive since 2013. She had also worked as a registered home manager before progressing to the post of regional manager responsible for a group of care homes. She worked her way up to Director level and between 2006 – 2010 was the managing director for a large corporate care homes provider with responsibility for 200 services across England. This all meant that she was very familiar with the operation of care homes in the UK. Ms Pike had previously advised her verbally, that the Claimant had been suspended while an investigation was conducted by Ms Perreira, as the unit manager. She had no further involvement in the matter until she was asked to chair the appeal although she was kept abreast as the investigation progressed and the disciplinary hearings took place.

[84]When the disciplinary process was set up, it was agreed that Ms Pike would conduct the disciplinary hearing and if the Claimant was dismissed and appealed, that appeal would be heard by Ms Clinton. It was appropriate for the Respondent, as a responsible employer, to consider how it would use its officers in a disciplinary process to ensure that there are sufficient, different managers who can manage the whole process. If the Claimant had not been dismissed the process would have stopped and Ms Clinton would not have needed to get involved.

[85]Mrs Clinton had not seen any of the paperwork relating to the Claimant’s disciplinary before she was appointed to hear the appeal. In advance of the disciplinary appeal hearing, Ms Marston, the HR Manager, provided Ms Clinton with a file containing the investigation report, the witness statements, all correspondence between the Claimant and the Respondent, minutes of the meetings and all correspondence between the Respondent and RCN. Ms Clinton also had a copy of the Claimant’s letter of appeal.

[86]From reading those documents she would know that the Claimant’s grounds of appeal were that she disagreed with the decision to dismiss her, that she alleged that there had been collusion between the witnesses, that her reasons for appeal had focused on the staffing levels and that she considered a lesser sanction to be appropriate. It was not clear what, if any, procedural issues the Claimant had with her dismissal but Ms Clinton expected that if there were any, the Claimant’s union representative would expand on those in the hearing.

[87]Ms Clinton was adamant in the hearing that staffing levels were not an issue on the Cedar unit at St Mary’s Court. She was aware that the Claimant had previously raised concerns about staffing levels but those had been investigated and the Respondent had worked with the Claimant to show her how to allocate staff and how to work within the Respondent’s routine.

[88]In conducting the appeal hearing, Ms Clinton agreed with Ms Pike that the most serious allegation that the Claimant faced was that a resident had been harmed and that the Claimant was the last person to be with her having not allocated one carer to give her one-to-one care.

[89]At the start of the appeal hearing, Ms Clinton asked Mr Watts what new evidence the Claimant had that she wished to put before the appeal hearing. Or, if she felt the process had been unfair, this was her opportunity to say why she thought it had been unfair. Mr Watts raised concerns about the quality of the investigation report but confirmed that because he had had an opportunity on the Claimant’s behalf to interview the witnesses at the disciplinary hearings, any issues with the investigation report had now been rectified.

[90]The Claimant disputed the evidence which suggested that she had left the resident on her own. She challenged the four witness statements that supported that suggestion and submitted to Ms Clinton that they had done this to protect themselves. Ms Pike had not found any evidence of collusion between the carers.

[91]The Claimant was asked both by Mr Watts and Ms Clinton to put forward any new evidence to be considered at the appeal hearing. The Claimant repeated her case that the evidence which stated that she had been alone with the service user should not be relied on and that dismissal was not appropriate in the circumstances. The Claimant also raised the issue of understaffing at the unit on the night in question. Ms Clinton pointed out to her that this had been discussed during the disciplinary hearing and so was not a new matter. The Respondent had concluded at the disciplinary hearing after considering that point, that the resident had been left alone by the Claimant and this was ultimately the cause of the injury to service user rather than anything to do with staffing levels.

[92]Towards the end of the appeal hearing and prompted by Mr Watts, Ms Clinton asked the Claimant to tell her whether she had reflected on her practice and did she intend to make any changes as a result. The Claimant responded to say that she would be more responsible in future and that she would employ better report writing and would request to have CCTV in place. Ms Clinton was expecting the Claimant, as a senior nurse to say that she had thought carefully about how she might have done things differently on the night in question to prevent the incident happening. Instead, the Claimant suggested that the Respondent should have CCTV so that people can see what really happened. She referred to the harshness of the decision to dismiss her and said that she had enjoyed working for the Respondent. Ms Clinton acknowledged that.

[93]At the end of the appeal hearing, Ms Clinton retired to consider her decision. She considered the original evidence, the process followed by Ms Pike and the Claimant’s comments at the appeal hearing. She concluded the following: -93.1 The Claimant was a registered nurse of many years standing.

93.2 The Claimant knew that one-to-one care was required for the resident, she knew what one-to-one care meant and there was sufficient staff on duty that night to allow the Claimant to allocate one-to-one care to the resident.

93.3 It was not reasonable to conclude that the witnesses had colluded.

[94]At the time of the incident, the resident had been funded for one-to-one care for many months and the Claimant, who worked several nights a week, had admitted that she knew at the time, that a member of staff should have been with resident JH on a one-to-one basis.

[95]Ms Clinton checked that there had been four carers on duty at the time the incident took place. This was the usual staffing for the number and dependency of service users accommodated at that time.

[96]Ms Clinton reviewed the witness statements and interviews and spoke with both the investigating and disciplinary officers. The evidence indicated to her that the witnesses were confident and credible in terms of who was doing what, when and why. This was in contrast with the Claimant’s explanations which were confused and contradictory. The Claimant had offered no reasonable explanation as to why the witnesses would conspire against her, especially as she also stated that they got on well.

[97]Ms Clinton considered and concluded that the possibility of witness collusion and false testimony by the witnesses was highly unlikely.

[98]After consideration of all the evidence, it was clear to her that it was likely that the Claimant left the service user alone to return to her medication trolley. She concluded that this was careless to the point of negligence because, as she oversaw the shift, the Claimant could simply have waited for a carer to return or called a carer using the call point available.

[99]Ms Clinton concluded that the disciplinary procedure had been followed and that the Claimant and her trade union representative had been given ample opportunity to not only challenge the evidence but to cross-examine witnesses directly. She concluded that the findings of the original disciplinary process were fair and reasonable and that the Claimant had committed gross misconduct.

[100]Ms Clinton considered separately whether dismissal was a reasonable outcome of these proceedings.

[101]It was clear to her, even considering the Claimant’s past clean record, that a vulnerable service user had come to harm because of the Claimant’s actions. This was compounded by the Claimant’s apparent inability at the appeal hearing to show that she had reflected on her own practice. Ms Clinton was disappointed with the Claimant’s appeal as she had no new evidence to present and when given the opportunity, she was unable to show that she had since gained any insight into her own practice. In those circumstances, Ms Clinton did not agree that the decision to dismiss the Claimant had been harsh. The Claimant had acted in such a way as to lead to injury to a vulnerable adult service user. She left a one-to-one care service user alone while she was responsible for their care.

[102]In her evidence at the Tribunal hearing Ms Clinton was clear that it was not the Respondent’s practice to have one carer looking after two residents needing one-toone care. She stated that other staff nurses managed to cover all aspects of work on the shift with the same level of staff. They managed to provide one-to-one care for the residents who needed it while also covering the other residents as needed.

[103]On those basis, Ms Clinton concluded that the decision to dismiss the Claimant had been fair and was appropriate in the circumstances. She wrote to the Claimant on 23 October 2017 setting out her conclusions. In the letter, Ms Clinton stated that the Claimant had not produced any new evidence at the appeal hearing and that although when asked if there were any insights or reflections which might mitigate against a dismissal, she had made some suggestions for actions the company could take; she had not offered anything of substance in terms of insights into or reflections on her own practice which might have prevented the incident. Ms Clinton also stated in the letter that she found the disciplinary hearing process to be thorough and that the Claimant and her representative had been given ample opportunity to cross-examine the witnesses in person. The letter informed the Claimant that her dismissal had been upheld.

[104]In her evidence at the Tribunal hearing, the Claimant agreed that she allocated one person that night to two residents when she knew that both residents had to be allocated one-to-one care. The Claimant submitted that there was a shortage of staff and that someone who did a 10am to 10pm shift had been stopped and therefore there was not adequate staffing. The Claimant could not point to any documentation in the bundle of documents which confirmed this or show how that was relevant to the allegations proved against her. The Claimant’s case was also that she said more than is recorded in the notes of the disciplinary hearing. It was her case that she had said in the disciplinary hearing that she had no one to allocate. However, she accepted in live evidence that failing to allocate someone to look after someone who is assessed as needing and entitled to one-to-one care would be an act that could harm the wellbeing of that resident and that this was what she had done.

[105]The Claimant confirmed that she had a copy of the disciplinary procedures and that she knew that she was being charged of gross misconduct which could result in her dismissal. She also agreed that there should have been an investigation into this matter once the resident suffered an injury. She confirmed that MG and JH both required one-to-one care that night. However, she denied that she had been the last person in the room and denied that she had been on her own with JH that night. She suggested that the witnesses may have colluded because they feared for their jobs.

[106]The Claimant confirmed that it was her job to oversee how the resources were allocated on the night. Law Unfair dismissal

Law

[107]The Respondent has the burden of proving the reason for dismissal and that it is a potentially fair one. The Respondent submitted that the Claimant was dismissed for gross misconduct.

[108]The Claimant did not accept the Respondent’s reasons and submitted that the evidence gleaned from the investigation was unreliable and/or may have been the result of collusion. She submitted that it was not her fault that there was no-one allocated to provide 1:1 care for the resident JH as there was insufficient staff and that dismissal was too harsh a sanction to apply in her case given her experience and unblemished disciplinary record.

[109]The law considered by the Tribunal was the seminal case of BHS v Burchell

[1980] ICR 303

, where a three-stage test was outlined for tribunals in assessing complaints of unfair dismissal. The employer must show that: -109.1 he believed the employee was guilty of misconduct;

109.2 he had in his mind reasonable grounds which could sustain that belief, and

109.3 at the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.

[110]This means that the employer does not need to have conclusive direct proof of the employee’s misconduct but only a genuine and reasonable belief of it, which has been reasonably tested through an investigation.

[111]If the Tribunal concludes from all the evidence that this is the case; then the next step for the Tribunal is to decide whether, taking into account all the relevant circumstances, including the size of the employer’s undertaking and the substantial merits of the case, the employer has acted reasonably in treating it as a sufficient reason to dismiss the employee. In determining this, the Tribunal should be mindful not to substitute its own views for that of the employer. Whereas the onus is on the employer to establish the reason for the dismissal and that it is a fair one, the burden in this second stage is a neutral one. The Burchell test applies here again and the Tribunal must ask itself whether what occurred fell within “the range of reasonable responses” of a reasonable employer.

[112]The law was set out in the case of Iceland Frozen Foods v Jones

[1982] IRLR 439

where Mr Justice Browne-Wilkinson summarised the law by pointing to the words of section 98(4) themselves and then stated that the tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (i.e. the members of the tribunal) consider the dismissal to be fair as the tribunal must not substitute its decision as to what was the right course to adopt for that of employer. He stated that in many (though not all) cases there is likely to be a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonable take another and the function of the Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable response which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal it is fair: if the dismissal falls outside the band it is unfair.

[113]The Claimant submitted that the investigation and disciplinary process was flawed and that the Respondent should not have accepted the evidence given by Ms Wainwright-Harrower or that of the other carers but should instead have preferred her witness statement.

[114]In the case of Linfood Cash and Carry Ltd v Thomson

[1989] IRLR 235

the EAT stated that the relevant question is whether an employer acting reasonably and fairly in the circumstances could properly have accepted the facts and opinions which he did. The Tribunal is not entitled to interfere simply on the ground that it prefers one witness to another; it must have logical and substantial grounds for concluding that no reasonable employer could have assessed the credibility of the witnesses in the way the employer did.

[115]That analysis was adopted by the Court of Appeal in Morgan v Electrolux Ltd

[1991] IRLR 89

in which it was said that serious allegations, at least where disputed, must be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by lay persons and not lawyers. The test is still whether a reasonable employer could have acted as the employer did. (See also the case of A v B referred to by the Claimant in her submissions).

[116]In the case of Sainsbury’s Supermarket v Hitt

[2003] ICR 111

it was held that all aspects of the Burchell test fell to be determined by the range of reasonable responses test. In OCS v Taylor

[2006] ICR 1602

, the Court of Appeal clarified that the proper approach is for the tribunal to consider the fairness of the whole of the disciplinary process. The court stated that our purpose is to determine whether, due to the fairness or unfairness of the procedures adopted, the 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. The Court went on further to say that the tribunal should not consider the procedural process in isolation but should consider the procedural issues together with the reason for dismissal as it has found it to be and decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason it has found as a sufficient reason to dismiss.

[117]In the Claimant’s written submissions there were new matters raised that had not been canvassed in the hearing and were therefore not part of the Claimant’s case. For example, it was submitted that the Respondent were aware that Ms WainwrightHarrower had tried to secure the resident with a belt but decided not to act on it. That was not a matter that was canvassed in the hearing and had not been part of the Claimant’s case in the disciplinary and appeal hearings. There had been some questions asked of Ms Perreira in relation to the comments in her email of 15 August to Ms Pike but that was as far as the evidence went. The Claimant submitted that the written version of the investigation was different from the typed version. That was not canvassed in the hearing and the Tribunal is not aware of what differences the Claimant would point to, if any, and what she would say those differences meant. It was also submitted that Karen and Marcin coerced someone to change their version of the incident as it was realised that her true version was going to implicate all the carers. It is not clear to the Tribunal if this was a reference to the Claimant or to Ms Wainwright-Harrower because again, this was not part of the Claimant’s case that had been put to the Respondent’s witnesses in the hearing. It was not clear to the Tribunal why those carers were disadvantaged by Ms Wainwright-Harrower’s entry in the daily progress sheets or how they were advantaged in the version of events written in the statement. Lastly, the Claimant’s submissions appear to suggest that the Claimant should not have been asked to work as part of the team on the night because she had other tasks to do and if she was, that proves that the Respondent was short-staffed on the night. That was not a matter that was part of the Claimant’s case in the hearing. It was not put to Ms Perreira, Ms Pike or Ms Clinton that the Claimant should not have been expected to form part of the team as well as be the Nurse in Charge of the shift.

[118]The tribunal must also decide whether dismissal was a fair and reasonable sanction, in the particular circumstances of this case. Applying law to facts

[119]The first question for the tribunal - is what was the reason for the Claimant’s dismissal?

[120]The respondent submitted that the claimant was dismissed because of gross misconduct. It was the claimant’s case in the hearing that she was dismissed in effect to the appease JH’s son rather than for gross misconduct.

[121]Is this Tribunal’s judgment that the Respondent considered the evidence gleaned from the investigation, as well as the Claimant’s explanations at the disciplinary hearing before coming to the decision that the Claimant had committed gross misconduct and that dismissal was the appropriate sanction.

[122]It is this Tribunal’s judgment that there is no evidence of the resident’s son’s views being taken into account as part of the disciplinary process. He did speak to Ms Pike to express his understandable concern for his mother and her care. Instead, the evidence was that in coming to her decision at the disciplinary hearing the factors she considered were: the claimant’s conduct in relation to the allegations against her, the evidence of the carers who worked the shift with her and the Claimant’s awareness of the obligations and duties as the staff nurse on duty. There was no evidence that JH’s son’s views had anything to do with it.

[123]It is also likely that Ms Pike had the CQC and the statutory controls and standards put on homes that are registered by the CQC.

[124]It is this Tribunal’s judgment that the Respondent has proved that the Claimant was dismissed for gross misconduct.

[125]Did the Respondent have reasonable grounds for it to believe and did it believe that the Claimant had committed gross misconduct?

[126]The Claimant made various criticisms of the Respondent’s investigation into the incident that occurred on the night of 13 August. However, she did not suggest that Ms Perreira should have interviewed anyone else or that she had not looked at some relevant evidence that the Claimant had asked her to look at. The Claimant’s main contention was in relation to the carers’ evidence and in particular, Ms WainwrightHarrower’s evidence. It was her case that the Respondent should not have accepted Ms Wainwright-Harrower’s statement because it contradicted the notes she previously made on the daily progress sheet. In this Tribunal’s judgment, Ms Perreira did not simply rely on the statement that Ms Wainwright-Harrower gave her but even in the first instance, she also collected statements from Ms Holcombe and the Claimant. Further statements were collected after the Claimant’s suspension. In addition, the Claimant confirmed that she had spoken to Ms Wainwright-Harrower about how to write her report rather than allowing her to write her own recollection of the incident.

[127]Crucially, the Claimant confirmed that she was aware of the requirement to arrange one-to-one care for both MG and JH, for different periods of time during the night and that she was the person responsible for allocating staff to give that care. That is why she completed the allocation sheets. She confirmed that she had allocated appropriate care on this occasion but had asked Ms Wainwright-Harrower to care for both vulnerable residents at the same time. One-to-one care means that each resident should have had each had one person to provide them with the level of care they needed. On that night, they did not get that level of care. The Claimant did not dispute those facts which arose from the investigation. Whether the Respondent was short of carers, the Claimant was responsible to allocate care so that both MG and JH received one-to-one care for their safety and well-being.

[128]There was no evidence that the carers colluded against her or that they wrote their statements together or that the Respondent wrote the statements for them.

[129]In this Tribunal’s judgment, Ms Perreira conducted a fair and thorough investigation into the incident on the night of 13 August 2017 and recommended that there should be a disciplinary process against the Claimant.

[130]It is this Tribunal’s judgment that the Respondent followed a fair disciplinary procedure. The Claimant was advised of 4 allegations against her at the time of her suspension and those increased to the 5 allegations she faced at the disciplinary hearing. The additional charge arose out of the investigation that was undertaken after her suspension and was the allegation that the Claimant left the resident alone. The Claimant was given all the documents supporting the investigation, she was advised of her right to be accompanied and was given time to confer with her Trade Union representative before the disciplinary hearing. The disciplinary hearing was also adjourned so that she and her representative would have an opportunity to question Ms Wainwright-Harrower about her evidence, her statements and what she said occurred on the night.

[131]In this Tribunal’s judgment, the Claimant had ample opportunity at the disciplinary hearing and at the appeal hearing to challenge the evidence against her, to ask questions of the Respondent’s witnesses – including Ms Wainwright-Harrower – and to produce her own evidence. Ms Pike weighed up all the evidence before her before she came to conclusions about what had occurred on the night. At a disciplinary hearing the employer has an opportunity to assess the evidence in the light of the allegations and decide whether some or all of the allegations against the employee are proven. If all are unproven then the employee will not be sanctioned. If some are unproven the employer will decide the appropriate sanction to impose for those that are. In this case, Ms Pike decided that there was insufficient evidence that the Claimant had intimidated Ms Wainwright-Harrower into writing as she did on the daily progress sheet although her evidence and that of the other three carers proved that the statement she wrote out and gave to Ms Perreira was highly likely to be accurate. However it was reasonable for her to believe Ms Wainwright-Harrower’s evidence in her statement because it was consistent with the evidence given by the other 3 carers and with the live evidence she gave at the resumed disciplinary hearing. Ms Wainwright-Harrower was one of the most junior members of staff in the organisation providing care and there was no evidence before the Tribunal that the Respondent were more likely to believe her over the Claimant unless the evidence pointed that way.

[132]In this Tribunal’s judgment, Ms Pike reached a reasonable decision at the end of the disciplinary hearing, after considering all the evidence. Her decision was that the Claimant had committed gross misconduct by neglecting to allocate one-to-one care to a vulnerable resident which was her responsibility to do. She also concluded from the evidence that the Claimant had been left alone with the resident while Ms WainwrightHarrower went to put MG to bed assisted by Ms Holcombe, and that the Claimant had then left the resident alone. It was while the resident was left alone that she fell and sustained an injury that required her to be kept in hospital. She did not uphold the allegation that the Claimant had provided false information to the resident’s family as there was insufficient evidence of that.

[133]It is this Tribunal’s judgment that the Respondent had a reasonable belief that the Claimant had committed gross misconduct as her actions in failing to allocate oneto-one care to JH were actions that were likely to harm the well-being of a resident. In fact, JH’s well-being was harmed as she sustained an injury which required her to be hospitalised. it is this Tribunal’s judgment that the Respondent’s decision that the Claimant had committed gross misconduct was a fair and reasonable one.

[134]The last question for the Tribunal was whether, taking into account all the circumstances – including the size of the Respondent’s undertaking and its resources - dismissal was an appropriate sanction to impose. Had the employer acted reasonably in treating it as a sufficient reason to dismiss the employee?

[135]Ms Pike considered that the Claimant had not followed the procedure that she was aware of – namely, allocating someone to give one-to-one care to named residents in accordance with their care plans. In the disciplinary, the Claimant confirmed that she was aware of that and agreed that she had failed to do so. Her failure to do so played a significant role in the resident falling and injuring herself. Even though two of the allegations were held to be unproven those that were upheld were the more serious allegations.

[136]There was no evidence of a pre-determined decision to dismiss her. The Respondent allocated different managers to conduct the investigation, the disciplinary hearing and the appeal. There was no evidence of them colluding together or of a predetermined decision to dismiss her. Her dismissal was based on the evidence produced at the disciplinary hearing and the Claimant’s own evidence at that hearing.

[137]The Claimant’s actions on this occasion were serious. It was reasonable for the Respondent to believe that she had failed to care properly for the vulnerable adult in her care. This was one of the types of conduct noted in the Respondent’s policy as gross misconduct justifying summary dismissal. The Respondent considered that the failure to allocate JH a one-to-one carer on the night had been exacerbated by the Claimant’s action in leaving her unattended after Ms Wainwright-Harrower and Ms Holcombe had left the dining room to take MG to bed.

[138]When considering what sanction to impose, Ms Pike considered all the factors set out above and concluded that they outweighed the Claimant’s clean disciplinary record with the Respondent. It was her decision that summary dismissal was an appropriate sanction.

[139]In conducting the appeal hearing, Ms Clinton simply considered whether the Claimant had produced any new evidence to challenge Ms Pike’s decision or whether she could point to any flaws in the procedure that Ms Pike had followed. It is this Tribunal’s judgment that the appeal was not a rehearing and that Ms Clinton could restrict her consideration to simply whether the Claimant had any new evidence to put before her or had any complaints on the procedure that Ms Pike and Ms Perreira followed. The Claimant did not have any new evidence for her to consider. The Claimant did not make any complaints about the Respondent’s procedure apart from her complaint that the Respondent should not have accepted Ms WainwrightHarrower’s evidence.

[140]Ms Clinton considered the procedure followed by Ms Perreira and Ms Pike and she spoke to them. In this Tribunal’s judgment, she reviewed the process that led to the Claimant’s dismissal. Nothing that the Claimant said at the appeal hearing challenged that decision and the finding of gross misconduct was confirmed.

[141]It is the Tribunal’s judgment that Ms Clinton considered whether the sanction of dismissal was appropriate and gave the Claimant an opportunity to show that the incident had caused her to reflect on her practice as a nurse and to think of things she might change. The Claimant was unable to show that she had reflected on her practice and failed to acknowledge that there were things that she should change. Instead she referred to CCTV. The Respondent did not consider that this was appropriate and in the Tribunal’s judgment that did not address her failure to allocate staff to the two vulnerable residents who required one-to-one care in the shift on the evening of 13 August. After due consideration of the disciplinary process that had been followed, looking at the evidence and listening to the Claimant; Ms Clinton concluded that there was no reason to change the decision.

[142]The Respondent concluded that the Claimant had committed gross misconduct and that it was serious enough to warrant the termination of her contract.

[143]It is this Tribunal’s judgment that the following circumstances were uppermost in Ms Pike’s mind when she decided to dismiss the Claimant: - the Claimant’s seniority and experience as a nurse, her familiarity with the job and her knowledge that two vulnerable adults required one-to-one care that night; her acceptance that the residents were in her charge during the shift and that she had failed to allocate them the care that they were entitled to; and her decision to allocate one carer to look after two vulnerable adults who both needed one-to-one care. In addition, it is highly likely that she left JH in the dining room on her own. JH was one of the vulnerable adults who required one-to-one care at that time. Because of being left on her own, JH fell and sustained a serious injury which resulted in her being hospitalised. The Claimant’s actions that night contributed to that situation and it was reasonable, given all those circumstances taken together, for the Respondent to conclude that she had committed gross misconduct.

[144]In this Tribunal’s judgment it was within the band of reasonable responses for the Respondent to decide that summary dismissal was the appropriate sanction for the Claimant’s gross misconduct. There was no dispute that she had failed to allocate care as was required that night. There was no dispute that she knew that she had to do so. She was an experienced nurse and had been in charge of the shift before. She did not accept her part in what had happened. It was reasonable for the Respondent to conclude that her actions had contributed to a situation where a vulnerable resident came to harm, that she had not reflected on her practice and that this was an act of gross misconduct that could not be outweighed by a clean disciplinary record.

[145]The decision to terminate the Claimant’s contract of employment was within the band of reasonable responses open to the Respondent as her employer given what had happened and her responsibilities as the nurse in charge of the shift. The Respondent would also have been conscious of its duties as an organisation subject to the strict controls of the CQC and charged with the responsibility of looking after vulnerable adults.

[146]In all those circumstances, it is this Tribunal’s decision that the Claimant’s summary dismissal for gross misconduct was fair and reasonable in the circumstances.

[147]The dismissal is fair. The complaint of unfair dismissal fails and is dismissed.