Miss H Thomas v DMP Healthcare Ltd (Bluebell Nursing and Residential Care Home): 3200522/2024
EMPLOYMENT TRIBUNALS
Case No 3200522/2024
Between
Miss H ThomasClaimantDMP Healthcare Ltd (Bluebell Nursing and Residential Care Home)Respondent
Before
Employment Judge Illing
Members
Ms M DanielsMr S WoodhouseIn person for claimantDate 10 December 2025
JUDGMENT
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]The complaint of breach of contract in relation to notice pay is well-founded.[3]The complaint of direct age discrimination is not well-founded and is dismissed.[4]The complaint of direct sex discrimination is not well-founded and is dismissed.[5]The complaint in respect of holiday pay is not well-founded and is dismissed.
REASONS
The Issues
[1]The claimant issued her claim on 2 March 2024 and this was responded to on 2 May 2025.[2]Early conciliation had begun on 29 January 2024 and ended on 21 February 2024.[3]A case management hearing on 23 July 2024 gave orders to prepare this case for the final hearing.[4]The parties were ordered to disclose documents and agree a bundle by 7 October 2024. Witness statements were to be exchanged by 4 November 2024 and the claimant was to provide the respondent with further information to finalise the list of issues, specifically in relation to key dates and examples of discriminatory behaviour.
The hearing
[5]With regards to the bundle, the Claimant confirmed that she had received an initial bundle from the Respondent. She also confirmed that she had sent her documents, involving emails from her Trade Union representative, to the Respondent. It is also noted that the Claimant had corresponded with the Tribunal due to a delay in receiving the bundle, and the Parties were ordered to cooperate.[6]The Respondent had written to the Tribunal on 12 January 2025 to request an extension of time in relation to the list of issues, the bundle and witness statements. It was otherwise ready for the hearing. There was no response to this correspondence.[7]The Claimant wrote to the Tribunal on 13 January 2025 confirming that she did not want a delay and that she had her bundle of documents.
Findings of fact
[8]On the morning of the first day of the hearing, the Claimant did not attend. Despite endeavours to call and email her, there was no response. Given that the Claimant had been active in her engagement with the Tribunal there was concern that there was a good reason for her absence.[9]Following housekeeping matters such as the list of issues, the fact that the Respondent’s statements were only printed on the odd-pages and the lack of page numbers in the statements, the first day was adjourned to be a reading day and the Tribunal emailed the Claimant to inform her that the hearing would continue the following day at 1000 and she should attend by 0930. This email was sent to the Claimant at approximately 1315.[10]The Tribunal received an email from the Claimant at 1557 apologising for her non-attendance and explaining that she had believed that the hearing was not going ahead because of the Respondent’s request for more time.[11]At 0928 on the morning of the second day, the Tribunal received a further email from the Claimant stating that she was on the train and would be attending the hearing.[12]At the outset of the hearing, the Respondent provided entire witness statements and confirmed that the Claimant had also received these.[13]There followed a discussion in relation to the bundle. The Respondent confirmed that the documents in the bundle were those originally sent to the Claimant and that her documents, in relation to Schedule of Loss and the Trade Union emails were included. The Claimant could not find all of her documents, but in describing them, we were able to ascertain that they had been included. The Claimant was told that she could resend any documents to the Tribunal and the Respondent and if they were not included, they could be added to the back of the bundle in time for her to cross examine the Respondent’s witnesses.[14]Upon adjourning for lunch, the Claimant approached the clerk and advised her that she was worried as she believed that she may have left something in the oven in her panic to attend the hearing today.[15]The Claimant and the Respondent’s representative were recalled to the hearing room. The Claimant explained that she had emailed the Tribunal yesterday afternoon in reply to the calls and email from the clerk. She said that she had not seen the Judge’s email regarding the restart of the hearing today until after work this morning, as she had worked a night shift. She said that she had got home, put a steak under the grill and only then seen the email. She explained that she had panicked, picked up her bag and left immediately. She had only just remembered about the steak. She had no family, friends or neighbours who she could call to access her property.[16]Having heard objections from the Respondent’s representative, it was determined that the hearing would be adjourned so that the Claimant could return home. The parties were told that the hearing would restart at 1000 with the continued cross examination of the Claimant. The Claimant must be prepared to question the Respondent’s witnesses tomorrow too. The Claimant was told that if there was an issue at home, she must inform the Tribunal immediately. The hearing We have a bundle of 418 Pages[18]We heard evidence from the Claimant on her behalf.[19]We heard evidence from the following on behalf of the Respondent: 19.1. Ms Leanne Hornsby (Deputy Manager – Investigation Manager) 19.2. Ms Mihaela Munteanu (Registered Home Manager – Disciplinary Manager)[20]Mr Lucian Balog (Operations Manager – Appeal Manager) The claims[21]The Claimant has raised the following claims: 21.1. Unfair Dismissal 21.2. Wrongful Dismissal 21.3. Direct Sex Discrimination 21.4. Direct Age Discrimination 21.5. Unpaid Holiday Pay Background[22]The Claimant was employed by the Respondent from 25 October 2013 as a health care assistant. She had 10-years’ experience of healthcare with the Respondent.[23]In her own time the Claimant was studying for a degree in Health and Social Care at Anglia Ruskin University from May 2019 – December 2023. She also had other care related care qualifications and is currently studying a Master’s degree in Social Work.[24]The Respondent is a care home providing services to 60 service users across 3 floors.[25]The Claimant’s role included providing care and personal care services to the service users on the ground floor.[26]All of the service users had a portfolio of care plans to take into account their different needs, including continence care, personal care and mobility care. All of which gave details as to how many carers should assist for any service provision.[27]All of the care of the care plans and the care provided was recorded on handheld devices, which were updated and to log the time and nature of the care provision. The carers would log into a device and use this throughout their shift so that the person or persons providing the care was also recorded. We have referred to this equipment as “the Device” throughout.[28]The Device would also show a background for the service user in their profile so that any person using the Device would be able to see the service users care history and any care plans that were in place for that person.[29]The care home in which the Claimant worked was one of a number owned by the Respondent company. Senior managers of the company worked across a number of homes. The Claimant only worked from this one location.[30]The Claimant had received a formal warning in 2019 for medication errors which stated that it was disregarded after 6-months.[31]This claim is with regards to an incident (the Incident) involving a service user falling from their bed. We have referred to this person as “the Resident”, throughout. Findings of fact Policies and Procedures[33]The Respondent operated a Disciplinary Policy. This provided for a procedure that was intended to follow the Acas Code of Practice. Within this policy it states: “Suspension is considered a last resort which considers employee length of service and security of the breach”. “For offences other that for serious or gross misconduct, the employee’s immediate supervisor or line manager should first ascertain the facts and review and evidence relating to any breach of rules of discipline.” “An employee may be dismissed if:• They have committed serious or gross misconduct.” “Examples of actions likely to be treated as gross misconduct include:• Acts of neglect leading to harm of residents• Serious breach of confidence.” “Only the head of organisation or senior organisation management can use written warnings and dismissal.” Contract of Employment 33.1. The Claimant signed a contract of employment as a care assistant on the 13 April 2015, which gave a commencement date of 25 October 2013. 33.2. The contract of employment states the following: “the Employee may be terminated by the Company without notice or payment in lieu of notice in the event of gross or persistent misconduct by the Employee.” 33.3. The contract also refers to the disciplinary procedure and where this could be obtained. Respondent’s Healthcare Policy and Procedure[34]The Respondent operates a comprehensive set of policies and procedures in relation to the provision of care to its service users. This includes a section in relation to the required actions in the event of a service user falling.[35]This policy does not refer to the requirement of the care provider to activate the emergency buzzer. Care Plans[36]Each Service User has a portfolio of personalised care plans that are related to their different needs. For the Resident he had care plans for the following: 36.1. Personal care, including washing and dressing etc. The plan dated 12 June 2023 provides for the Resident to require the full assistance of one – two care staff daily. On 12 July 2023 this was updated to require 2-carers for personal care. It was updated again on 11 August 2023, this required 2-carers. In September 2023, this care plan was amended to show the Resident requiring the full assistance of one – two care staff daily for 36.2. Mobility, including walking and getting into and out of bed, dated 9 August 2023. This care plan provides that the Resident is bed / chair bound and requires the assistance of two care staff for his mobility needs. 36.3. Maintaining a safe environment including ensuring that the Resident’s environment is safe, which includes checking they are ok or changing the bed, dated 22 July 2022. This care plan provides that the Resident relies on the assistance of two carers. 36.4. Continence including toilet help dated 4 February 2025. This care plan provides that the Resident requires the full assistance of two carers to meet his incontinence needs.[37]The Care Plans do not provide any details as to the consequences for a care provider for failing to follow the care plan. Training[38]The Claimant had attended regular training. We were not provided with any evidence as to the content of the training material. Findings of fact for Unfair dismissal[39]The Respondent operates a number of care homes within one the Claimant was employed as a Senior Care Assistant.[40]The Claimant commenced employment on 25 October 2013 until her dismissal, without notice on 20 November 2023. At this time, the Claimant was employed as a Care Assistant.[41]The Claimant was promoted to Senior Care Assistant in 2019, which allowed her to provide medication to service users. On 2 August 2023 the Claimant failed her medication competency assessment. She remained as a Senior Care Assistant, her pay remained unchanged. However, she was not permitted to administer medication until after she had passed another assessment.[42]An incident occurred which resulted in the Resident falling out of bed and incurring an injury. The Respondent states that this occurred on the 9 November 2023, the Claimant states that this was on the 11 November 2023. Having regard to the half hourly checks post fall, the incident report and the report to the Council, the Respondent believed that the incident occurred on the 9 November 2023. (“the Incident”)[43]The Resident is service user with a number of complex medical conditions and limited mobility. He was also on blood thinners.[44]The Claimant arrived for work for the night shift on the 9 November 2023 at 20:00. She was working alongside one other colleague on her floor. This colleague, Miss Paresh Tulsi, was new to the care home.[45]A further colleague, Ms Andreea Zarif was also on duty. She was the duty nurse, and her duties covered all three floors.[46]The Claimant and Ms Tulsi had a Device each and logged in. Both Devices required charging as the day shift had not charged them.[47]The Claimant and Ms Tulsi shared the early evening tasks between themselves and were working individually across the whole floor.[48]The Device that was logged to the Claimant records that at 20:58 on the 9 November 2023 she logged that she had changed the Resident’s pad, carrying out incontinence care.[49]The incontinence care plan for the Resident states that the Resident required the full assistance of two carers to meet his incontinence needs.[50]The Device that was logged into by the Claimant records that at 21:12 she logged that she had checked the Resident and that he was sleeping.[51]The Device that was logged into by Ms Tulsi records that at 22:14, she logged that she had checked the Resident and that he was sleeping.[52]At 21.55 the Claimant looked into the Resident’s room. The Claimant approached the Resident’s bed and removed the crash mat that was on the floor. The bed moved as the wheels were unlocked and the Resident rolled and slid down the wall onto the floor.[53]The Claimant left the Resident’s room and went to the manager’s office. The manager, Ms Mihaela Munteanu, was working late and was on the telephone to another service user’s daughter due to an urgent matter.[54]The Claimant states that she told Ms Munteanu that the Resident had fallen on the floor, Ms Munteanu states that she did not hear what the Claimant said but told her to see the Nurse, Ms Zarif, who was on duty.[55]The Claimant left the office to find Ms Zarif on the 1st floor. She then returned to the Resident and Ms Zarif followed shortly afterwards. The Resident had been alone until the Claimant returned.[56]Ms Zarif attended the Resident and found that he had received a small cut to his arm.[57]Ms Munteanu went to the Resident’s room when Ms Zarif and the Claimant were tending to the Resident, who was still on the floor. Ms Zarif explained that the Resident had fallen. He was returned to his bed and neither an ambulance nor paramedics were called. Ms Zarif was satisfied that he did not require any further care or assistance.[58]At 02:00 on 10 November 2023, Ms Zarif and the Claimant had a supervision, which is a recorded discussion of the incident and identification of any training needs and further actions.[59]Ms Zarif records on the supervision that she had seen that “the Claimant had gone to do personal care on her own and that this Resident is for double staff as well as the bed was not checked for breaks [sic] resulting with an incident after this unsafe technique.”[60]The Claimant recorded on the supervision “that the Resident’s care plan states that he can be assisted by one – two care assistants. The bed breaks [sic] were found unlocked. This the reason for him sliding down the bed. Hence supervision instruction heeded.”[61]The Claimant submitted an incident report on 10 November 2023 stating that “the Resident had a fall witness by myself at 21:55, this was due to the fact that the brakes were not on, the crash mat was removed from it [sic] position so as to administer the Resident’s personal care and the bed suddenly moved to the front as he tried to move himself.”[62]After the incident, the Claimant started a 72-hour post fall monitoring form in which she states, “I went into the Resident’s room to administer his personal care on entering his [sic] the crash mat was removed to gain access subsequently the bed moved forward as he positioned himself toward the wall causing him to slide off the bed.” She subsequently added further details at 0900 and 2200.[63]The Claimant called in sick on the 11 November 2023.[64]On 14 November 2023, the Respondent reported the fall to the Council as a safeguarding report. This states “on 9 November 2023 the Resident had a fall at 21:55 this was due to the fact that the brakes were not on. The crash mat was removed from its position to allow staff to care for him and the bed suddenly moved to the front as he tried to move himself towards the wall.”[65]On 14 November 2023, the investigation manager, Ms Leanne Hornsby, was appointed by Ms Munteanu.[66]Miss Hornsby was not given any written terms of reference. The purpose of the investigation was to examine what exactly occurred on the 9 November 2023. The aim was to establish whether the incident took place in the way it was reported and whether the Claimant had done anything that could amount to misconduct.[67]Miss Hornsby reviewed the care records and care plans of the Resident, including the incident form. She also spoke to Ms Zarif and Ms Tulsi. Miss Hornsby did not interview Ms Munteanu. There are no records of these meetings. Ms Hornsby confirmed in evidence that she did not tell the Claimant what Ms Zarif or Ms Hornsby had told her.[68]On 15 November 2023 Miss Hornsby prepared questions to ask the Claimant when she returned to work.[69]On 16 November 2023, the Claimant called the Respondent to say that she was fit to return to work at the weekend. She was invited to come into work immediately as a manager wanted to speak to her about the incident on the 9 November. The Claimant attended work without delay.[71]On attending work at 15:00, the Claimant was invited into a meeting with Miss Hornsby. Miss Coombs (Business Administrator) was present as note taker.[72]The Claimant was asked if she could recall what had happened and she replied: “I had gone to administer care. It says 1 – 2 to give personal care depending on his state…. The mat drink spole [sic] everywhere so I took mat to the side. The brakes were not on, the Resident moved, struggled the bed moved towards me, he rolled. I went to p/care. Brakes were not on. If they were on bed would not roll.”[73]The Claimant was asked what the Resident’s needs were and she replied: “The Resident care plan states 1 – 2 for his needs. I didn’t touch the Resident when this happened.”[74]The Claimant was asked about the manual handling of this Resident and the Claimant replied, “2 people for manual handling”.[75]The Claimant was asked why she went to do the Resident on her own and she replied “based on the care plan 1 – 2 to assist personal care. No limitation that I couldn’t go if I went and he needed extra, I would call carer for extra help.”[76]The emergency buzzer is not referred to in the investigation meeting notes.[77]Following the meeting, Miss Hornsby asked the Claimant to wait in the reception. Miss Hornsby spoke to the Finance Director / Owner (Mr Pradesh Patel) who approved a suspension. Miss Hornsby then handed the Claimant a letter dated 16 November 2023 that suspended her on full pay for an investigation “into an allegation [sic] neglect or acts of omission.”[78]In her witness statement, Miss Hornsby stated that she had prepared an investigation report. In evidence, she confirmed that she had not. There was no investigation report prepared.[79]Following the suspension, Mr Patel appointed Ms Munteanu as the disciplinary[80]On 16 November 2023, a Thursday, Ms Munteanu emailed the Claimant at 16:14 with a disciplinary invite. This letter and relevant documents were posted to the Claimant on the same day. The disciplinary meeting was due to held on the 20 November (Monday) at 11:00.[81]The letter stated the following: “The purpose of the meeting is to discuss your suitability for continued employment with the organisation and to provide you with an opportunity to present your explanation for the following:-• Failed to provide the correct treatment to a service user• Failed to risk access the environment resulting in a service user being harmed.• Endangering a service user due to neglect resulting in safeguarding being raised.”[82]The letter also gave the Claimant the right to be accompanied.[83]The letter does not detail any alleged conduct by the Claimant. In evidence Ms Munteanu stated that the alleged conduct was: 83.1. Providing care by herself when the care plan required 2 carers 83.2. Not checking the brakes on the bed. 83.3. Failing to press the emergency buzzer and leaving the Resident.[84]The letter does not detail any enclosures. In evidence, Ms Munteanu advised that the posted letter included the disciplinary policy.[85]On the morning of 20 November, the Respondent called the Claimant as she had not attended the meeting. The Claimant told the Respondent that she had not received the invitation letter, but that she was happy to attend.[86]The Claimant attended the meeting at 15:00. This was chaired by Ms Munteanu and Miss Hornsby was the note taker.[87]Ms Munteanu stated in evidence that she asked the Claimant if she was happy to continue as she was not accompanied, and that the Claimant confirmed that she was. This is not in the meeting notes. The Respondent believed that the Claimant was happy to continue.[88]The meeting notes record that the Claimant was asked to recall what had happened. The Claimant stated: “left to go assist John to change his pad, I lift the crash mat and put it on the side. On my own. He moved himself toward the wall which resulting in a fall, which the brakes was [sic] not on, crash mat must of been covering the wheels. Crash mat stained with a drink.”[89]During the disciplinary meeting it was put to the Claimant that she had reviewed the Resident’s care plan in May 2023, stating that the Resident required 2 carers. [160] This was in relation to the continence care plan.[90]The Claimant was asked if she had checked the brakes on the bed and she confirmed that she had not as the crash mat was covering the wheels. She also confirmed that she had to move the mat to be able to get close enough to the Resident to be able to speak to them.[91]The buzzer is not referred in the disciplinary meeting notes.[92]The final paragraph of the Claimant’s interview to the disciplinary manager includes: “if in the futer [sic] to ensure I will never go on my own to do personal care if the resident is a double.”[93]Following the disciplinary meeting, the Claimant was sent the outcome letter by email and by post. This was on the 22 November 2023 at 14:44. The outcome letter repeated the allegations, upheld a decision to dismiss for gross misconduct and gave the Claimant the right to appeal. The letter did not provide any reasoning or any alleged conduct for any of the allegations or the finding of gross misconduct.[94]The Claimant emailed her appeal to the Operations Manager on 24 November 2023 at 18:42. The grounds of appeal were as follows:• That the evidence was unsubstantiated.• That the severity of the outcome was not equitable against the charges alleged.[95]The Operations Manager, Mr Lucian Balog, was appointed as the appeal[96]The invitation letter for the Claimant, if there was one, was not produced in evidence. In evidence, Mr Balog stated that he believed that the alleged conduct of the Claimant was as follows: 96.1. Providing care by herself when the care plan required 2 carers 96.2. Not checking the brakes on the bed. 96.3. Failing to press the emergency buzzer and leaving the Resident.[97]An appeal meeting was arranged for the 13 December 2023. The Claimant attended with her Trade Union Representative, Mr Gary Pierce. The note taker was June Fletcher.[98]The meeting notes are not transcript of the meeting. The Claimant raised concerns in relation to her not receiving the disciplinary invitation before the meeting or with 5-days’ notice. She also complained that the manager should not have been involved in the disciplinary and that the nurse had not been interviewed by the disciplinary manager.[99]The outcome of the meeting is that Mr Balog decided to carry out further investigations.[100]Following the first appeal meeting, the Claimant was sent the meeting notes and made several amendments and made comments as to the process.[101]A second appeal meeting was held on the 5 January 2023. Mr Balog had interviewed Ms Zarif and Ms Tulsi and he provided the Claimant with copies of their statements and time to review them during the meeting. A copy of the handwritten statement from Ms Tulsi was provided in evidence. There is no written record of the interview with Ms Zarif.[102]Following this, Mr Balog asked the Claimant about the continence care record at 20:58 on the 9 November 2023, which recorded specific details of continence care and was recorded in her name. The Claimant denied carrying out this continence care and making this record. She stated that the Device was not with her at all times.[103]Mr Balog explained to the Claimant that he was looking for the root cause of what had happened. He stated that it was most likely that the last person to have checked the Resident had left the bed unsecured. He asked the Claimant if she had written the notes prior to the fall, and she denied it. The meeting was then concluded.[104]An appeal outcome letter was sent to the Claimant on 15 January 2024 by Mr Balog. This stated [308] that he had reviewed the following:• Incident report• Care plans• 72-hours post fall report• Staff statements• Appeal meeting minutes and• Relevant documentation such as care notes form the electronic system Person-Centred Software (the Device).[105]The Claimant’s appeal was not upheld for the following reasons: 105.1. That she had provided contradictory statements, and she had denied writing the records that were record on the Device that was logged into her name. 105.2. That she had not complied with the care plan, which indicated that the Resident required two staff members and that the plan had not been altered post the incident. 105.3. Care plan review had emphasized the need for two members of staff. 105.4. The post fall observation note that was written by the Claimant, indicated that the Claimant went into the room to give personal care. However, the Claimant then denied this. 105.5. That she had raised allegations of bias against the Home Manager as she had been involved in the incident and should not have been involved in the process. 105.6. That there were discrepancies in the care notes where she had refused to admit that care notes were written by her.[106]Mr Balog determined that “the original findings, based on a breach of care protocols and a failure to ensure the safety of the resident, align with the available evidence.”[107]The Respondent upheld the decision to dismiss without notice. Findings of Fact for Discrimination and Wrongful Dismissal Dismissal[108]On the 9 November 2023 the Claimant attended work at 20:00.[109]At the beginning of the shift the carers agreed between themselves their tasks for the evening. On the 9 November 2023, the Claimant and Ms Tulsi agreed that Ms Tulsi would clean the kitchen and dining room and that the Claimant would check rooms 6 through to 12. These are at opposite ends of the building.[110]The Claimant was assigned the task of checking the residents in rooms 6 – 12. The Resident occupied room 11. We accept this evidence as to the allocation of tasks.[111]All staff, when on duty, were required to log their care tasks on a Device. This was for both day and night carers.[112]We find that at the start of the evening shift, the Claimant and Ms Tulsi logged into their Devices.[113]The Claimant says that the Device was not charged and that she put it onto charge and that it remained logged in on her name. She says that this was the same for Ms Tulsi. The Claimant said that the day shift had not put the Devices onto charge and that this was not uncommon.[114]We accept that the Devices needed charging. We also accept that the Claimant had logged in but not logged out before charging the Device.[115]The staff were not required to keep the Device in their possession at all times and there is no policy as to its use.[116]The Device log shows that the Claimant carried out continence care for the Resident at 20:58. The Claimant denies that she carried out this care.[117]We accept that the continence care was carried out by a carer or carers at 20:58.[118]The Claimant asserts that someone else had used her Device to log the care, which was logged into her name.[119]Having reviewed the daily care logs for the Resident and others in neighbouring rooms, we find that there is only one Device being used to check on the residents between the start of the shift at 20:00 and 22:00. This Device was logged in to the Claimant.[120]We have accepted the Claimant’s evidence that Ms Tulsi was cleaning the kitchen and dining room at the start of the shift. The Claimant stated in evidence that it was not uncommon for members of staff to use each other’s logged in Devices and / or record care given after the fact. However, on the balance of probabilities, based on the evidence before us, we find that the Claimant was carrying out the room checks from the start of the shift at 20:00 until 22:00.[121]We do not accept that someone else was using the Claimant’s Device on the evening of 9 November. We find that the Claimant provided the care as recorded at 20:58, in that she provided continence care to the Resident.[122]The log also records that the Claimant checked the Resident at 21:12, and that he was sleeping.[123]The Claimant went to the Resident’s room at 21:55 and looked in.[124]The Claimant states that she went into his room because he had stirred and she wanted to get closer to him so that she could hear what he was saying. We accept the Claimant’s evidence and find that this is what she meant by personal care and she was looking to assess what he needed.[125]The room is small and there was a crash mat / mattress on the floor to the side of the Resident’s bed as he had previously had a fall. The bed was otherwise against the wall. To get close to the Resident to hear him, the Claimant moved the crash mat. In doing so, the bed moved as its wheels were unlocked. The Claimant had not seen this as the mat had covered the wheels. When the bed moved, the Resident also moved and this caused him to slide between the bed and the wall, onto the floor.[126]The Claimant states that she checked that the Resident was safe and then went to the manager’s office nearby to seek help. The manager, Ms Munteanu was on the phone and told the Claimant to go and find the nurse who was on another floor. We accept this evidence.[127]Ms Munteanu gave evidence that she did not hear what the Claimant said, other than the Claimant’s name.[128]The Claimant found the nurse, but they were unable to attend immediately as they were giving medication to residents on the first floor. The Claimant returned to the Resident and said that the nurse followed shortly afterwards. The Resident was on the floor for about 10 – 15 minutes. We accept this evidence.[129]The nurse and the Claimant were assessing the Resident when Ms Munteanu attended the room. No-one had pressed the buzzer, nor was an ambulance or paramedic called.[130]In evidence from Ms Munteanu, the Tribunal were informed that the buzzer should have been pressed. This is not repeated in the organisation falls policy [247], nor was evidence produced as to training in the event of a fall. We find that it is reasonable to require staff to press the buzzer in the event of a fall however, we find that no-one pressed the buzzer or called an ambulance or paramedic despite all three being in the room whilst the Resident was still on the floor.[131]The Claimant completed the incident report, the supervision and the post fall log. All recorded that she had gone into the room to do personal care.[132]The Claimant then had several days off work and was ill. On 16 November the Claimant contacted the Respondent to tell them she was fit to return to work. The Respondent called her back and invited her into a meeting later that day.[133]At 15:00 on attending the home, the Claimant was called into an investigation meeting with Ms Hornsby. During this interview the Claimant confirmed that she went into give personal care and that she moved the mat due to a spilled drink. She also stated that the care plan said 1- 2 carers.[134]Following the interview, Ms Hornsby contacted Mr Patel who approved a suspension. The Claimant was suspended immediately on full pay and she was given a letter confirming this.[135]On Thursday 16 November, the Respondent sent the Claimant a disciplinary invite by email and post. The letter detailed the allegations but did not provide details as to the alleged conduct of the Claimant.[136]We find that the Claimant did not receive this letter until the afternoon of Monday 20 November on her return from the disciplinary meeting.[137]The Claimant was called on the morning of the 20 to confirm her attendance. We find that she had not had the letter, but was willing to attend because she did not know that she had done anything wrong.[138]During the disciplinary, the Claimant stated that she “left to go assist the Resident to change his pad, I lift the crash mat and put it on the side”. We find that the Claimant was admitting that she had gone in to change his pad but had become confused and combined this with the incident for the fall.[139]On 22 November the Respondent emailed and sent the Claimant the outcome letter. The letter upheld the allegations but did not detail the conduct that amounted to those allegations.[140]We find that the conduct alleged by the Respondent was as follows: 140.1. Moving the crash mat. 140.2. Going into the room to give personal care. 140.3. Leaving the Resident on the floor. 140.4. Not checking the wheels of the bed.[141]The buzzer was not raised with the Claimant at the disciplinary meeting. In evidence Ms Munteanu stated that the Claimant knew she should, but did not, press the buzzer. We find that this was not put to the Claimant in the disciplinary.[142]We find that there was confusion between the Claimant and Ms Munteanu in relation to the meaning of personal care and which care plan applied. We find that the Claimant was referring to personal care in that she was looking to assess what the Resident required, for which the care plan allows 1 – 2 carers. This was her intention when the Incident occurred. We find that Ms Munteanu was referring to the continence care provided to the Resident earlier, for which the care plan requires 2 carers.[143]The Claimant appealed by email of 24 November.[144]The Claimant was invited to attend an appeal meeting, but that invitation letter has not been produced in evidence. We find that alleged conduct of the Claimant was not put to her in writing prior to the appeal meetings.[145]During the appeal meetings on 13 December and 5 January 2024 the Claimant raised her concerns about the process. With regards to the Incident, she said she had not intended to provide care, she accepted that she moved the mat. The earlier continence care record at 20:58 was put to her and she denies carrying out this care.[146]Mr Balog put it to the Claimant that she may have been the last person to be with the Resident in relation to the wheel locks and the Claimant again denied making that record.[147]In the appeal outcome, Mr Balog found that she had carried out the continence care and that her evidence to him was inconsistent.[148]The dismissal was upheld.[149]We find that the conduct alleged by the Respondent at appeal had increased and was as follows: 149.1. Moving the crash mat 149.2. Going into the room to give personal care 149.3. Leaving the Resident on the floor 149.4. Not pressing the emergency buzzer. 149.5. Carrying out continence care by herself. 149.6. Inconsistent statements during interview. 149.7. Denying that the post incident notes were written by her.[150]We find that the confusion between the Claimant and Mr Balog as to personal or continence care and which care plan applied continued. Not answering questions[151]The Claimant provided no examples and no evidence as to incidents where her questions were not answered in management meetings. No grievances had been raised and no informal complaints raised during supervisions. She was a Trade Union member, and no complaints had been raised with them.[152]We find that she did not raise a complaint in relation to not answering questions by management, nor that this occurred. Treating the Claimant with contempt[153]The Claimant provided limited examples and no evidence as to incidents where she was treated with contempt.[154]The Claimant put it to Mr Balog that he had treated her with contempt when she saw him in the foyer of the home after the disciplinary meeting as he did not introduce himself to her or say hello. No grievances had been raised and no informal complaints raised during supervisions. She was a Trade Union member and no complaints had been raised with them.[155]Mr Balog stated that he had had meetings with the team and that on the day of the disciplinary he was at the home for a regular compliance meeting. He was not aware that he had to introduce himself to the Claimant. We find that we accept this evidence.[156]We find that she did not raise a complaint in relation to being treated with contempt, nor did she raise this in the appeal.[157]We find that the clamant was not treated with contempt. Rush the disciplinary process[158]The incident occurred on the 9 November. The Claimant was called into an investigation meeting on the 16 November. We find that this is not an unreasonable timeframe.[159]The Claimant was suspended on the 16 November and was invited to a disciplinary by letter of the same date.[160]The disciplinary meeting was held on Monday 20 November and the Claimant had not yet received the disciplinary invite in the post, nor had she seen the email. The outcome was sent on the 22 November.[161]We find that this process was rushed at this stage and the Claimant was not given time to prepare or to be accompanied.[162]With regards to the appeal, the Claimants letter of appeal was 24 November and the first appeal meeting was held on 13 December. The second on the 5 January 2024. The appeal outcome was delivered on 15 January 2024. We find that this timeframe for the appeal was reasonable. Fail to provide the Trade Union Representative with documents as requested[163]The Claimant failed to adduce any evidence as to this allegation within her statement to the Tribunal. The Claimant did not identify what documents were requested.[164]The Claimant put to Mr Balog in evidence that he had not sent the documents through as requested. Mr Balog denied this and said he had sent through the documents that they had. The email from Mr Balog to the Claimant following the request for documents confirms that Mr Balog had sent the Claimant all the documents that had not previously been sent to her.[165]We find that we prefer Mr Balog’s evidence and find that he had sent the documents requested to the Claimant by email or referred to emails when the documents had previous been sent. Falsify statements from witnesses to the incident on the 9 November 2023[166]The only witness statement produced to the Tribunal from a witness to the incident on the 9 November, is the statement of Ms Tulsi dated 13 December 2023, which was taken for the purpose of the Claimant’s appeal.[167]We have found that no written statements were taken from witnesses other than this single statement from Ms Tulsi.[168]We have reviewed Ms Tulsi’s statement, and she does not say anything that is inconsistent with the Claimant’s own evidence. We find that this statement was prepared following the first appeal meeting, we do not find that it was falsified. Makeup of the business by age and sex[169]The Respondent had 74 staff. 13 of whom were over the age of 60, with only 5 male members of staff. We accept the Respondent’s evidence. Findings of Fact for Holiday Pay[170]The Claimant confirmed that she had received the outstanding money due to her for holiday pay, albeit she had received it only after these proceedings had been started. The law Unfair Dismissal
The law
[171]An employee has the right not to be unfairly dismissed, s. 94(1) of the Employment Rights Act 1996 (ERA). The relevant test is at s.s.98(1), (2) and (4) are relevant to this case. This states: 98. General. In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—(a) the reason (or, if more than one, the principal reason) for the dismissal, and(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— … (b) relates to the conduct of the employee … (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[172]The question of fairness in a conduct dismissal is British Home Stores Ltd v Burchell [1980] ICR 303 (EAT) which held that a dismissal on the grounds of conduct will be fair where, at the time of dismissal, a) that the employer must have a genuine belief in the misconduct; b) reasonable grounds for that belief; and c) the employer carried out as much investigation as was reasonable in the circumstances. We remind ourselves that we can only take account of those facts or beliefs that were known to those who took the actual decision to dismiss at the time of dismissal.[173]The test as to whether the dismissal fell within the band of a reasonable response are summarised within the judgment of Brown-Wilkinson J in Iceland Frozen Foods Ltd v Jones [1983] ICR 17, which states: 1. the starting point should always be the words of S.98(4) themselves; 2. in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair; 3. in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer; 4. in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 5. 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 responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”[174]In considering the “band of reasonable responses” we also direct ourselves to consider the question as to whether the respondent has acted reasonably or unreasonably in deciding to dismiss in accordance with equity and the substantial merits of the case, s.98(4) ERA. Newbound v Thames Water Utilities Limited [2015] I.R.I.R. 734.[175]Turning to procedure; in Turner v East Midlands Trains Ltd [2013] ICR 525, Elias LJ (at paras 16–17) cited paragraphs (4) to (8) from that extract in Aikens LJ’s judgment in Orr and added: ‘As that extract makes clear, the band of reasonable responses test does not simply apply to the question whether the sanction of dismissal was permissible; it bears upon all aspects of the dismissal process. This includes whether the procedures adopted by the employer were adequate: see Whitbread plc (trading as Whitbread Medway Inns) v Hall [2001] ICR 699; and whether the pre-dismissal investigation was fair and appropriate: see J Sainsbury plc v Hitt [2003] ICR 111.[176]It is impermissible for a Tribunal to substitute its own findings of fact for those of the decision-maker (London Ambulance Service NHS Trust v Small [2009] IRLR 563 at [40-43]). Nor is it for the Tribunal to make its own assessment of the credibility of witnesses on the basis of evidence given before it (Linfood Cash and Carry Ltd v Thomson [1989] ICR 518). 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.[177]Even if the dismissal decision falls within the band of reasonable responses, it may still be unfair, if the Respondent has not followed a fair procedure. The Tribunal must evaluate the significance of the procedural failing, because ‘it will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer’s process’ (Sharkey v Lloyds Bank Plc UKEATS/0005/15/JW at [26]).[178]When considering whether the employer acted reasonably, the Tribunal has to look at the question in the round and without regard to a lawyer’s technicalities (Taylor v OCS Group Limited [2006] ICR 1602 at [48]). This need for a holistic approach has been reiterated in later cases, notably Sharkey and NHS 24 v Pillar UKEATS/005/16/JW.[179]In Sainsbury v Hitt [2003] IRLR 23 at paras 30-34, the Court of Appeal held that: ‘The investigation carried out by Sainsbury’s was not for the purposes of determining, as one would in a court of law, whether Mr Hitt was guilty or not guilty of the theft of the razor blades. The purpose of the investigation was to establish whether there were reasonable grounds for the belief that they had formed, from the circumstances in which the razor blades were found in his locker, that there had been misconduct on his part, to which a reasonable response was a decision to dismiss him. … In my judgment, Sainsbury’s were reasonably entitled to conclude, on the basis of such an investigation, that Mr Hitt’s explanation was improbable. The objective standard of the reasonable employer did not require them to carry out yet further investigations of the kind which the majority in the employment Tribunal in their view considered ought to have been carried out. In suggesting further investigations of the kind set out in paragraph 6 of the extended reasons, the majority of the employment Tribunal were, in my judgment, substituting their own standards of what was an adequate investigation for the standard that could be objectively expected of a reasonable employer. On the decision of this Court in Madden, that is not the correct approach to the question of the reasonableness of an investigation.’[180]Circumstances will dictate how extensive an investigation is required. In Shrestha v Genesis Housing Association Ltd [2015] IRLR 399 at [23], the Court of Appeal held (per Richards LJ): ‘To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them in order to meet the Burchell test will depend on the circumstances as a whole.’[181]In looking at whether dismissal was an appropriate sanction, the question is not whether some lesser sanction would, in the Tribunal’s view, have been appropriate, but rather whether dismissal was within the band of reasonable responses. The fact that other employers might reasonably have been more lenient is irrelevant (British Leyland (UK) Ltd v Swift [1981] IRLR 91).[182]The employer cannot however use information coming to his knowledge at the appellate stage to justify a fresh reason in place of the original one. This, as the Court of Appeal held in Monie v Coral Racing Ltd [1979] IRLR 54, [1979] ICR 254 would be inconsistent with W Devis and Sons Ltd v Atkins [1977] IRLR 314. Lord Bridge's judgment, without expressly referring to it, is wholly consistent with the Monie case. Indeed, Lord Bridge cited with approval the following passage from the judgment of the EAT (Waterhouse J presiding) in the Nambiar case: ''… it is necessary to distinguish the case where an employee is dismissed for reason A and evidence at the internal appeal invalidates reason A but demonstrates that a different reason B would justify dismissal. It is clear that in such circumstances the original dismissal ought not to stand and the employer must look at the matter afresh in order to discover whether a later dismissal on the new information is appropriate. In the more usual case, however, where the employer confirms the decision to dismiss for reason A, following the appeal, we consider that it is right for an [Employment] Tribunal to look at the information which came to light in the course of the appeal'.'[183]In considering new facts discovered during the internal appeal process, West Midlands Co-operative Society Ltd v Tipton [1986] 1 All ER 513, [1986] IRLR 112, [1986] ICR 192, the House of Lords, unequivocally affirmed that in determining whether the employer has acted fairly in relying upon the reason for his dismissal, the employment tribunal should take account of evidence which emerges in the course of an internal appeal. However, nothing in principle prevents an employer’s appeal panel upholding a decision to dismiss on a different basis from that on which the original decision was made. This might happen if facts that emerge during the appeal process throw a different light on the original circumstances of the dismissal. For the dismissal to be fair, though, the employer must ensure that whatever grounds remain still justify dismissal. Perry v Imperial College Healthcare NHS Trust EAT 0473/10[184]When applying the range of reasonable responses test, it may be necessary to bear in mind exactly what the employee was charged with at the hearing: Strouthos v London Underground Ltd [2004] IRLR 636, CA (improper finding of gross misconduct when dishonesty had not actually been alleged).[185]It is a basic proposition in disciplinary proceedings that the charge against the defendant or the employee facing dismissal should be precisely framed, and that evidence should be confined to the particulars given in the charge. Care must be taken with the framing of a disciplinary charge and the circumstances in which it is permissible to go beyond that charge in a decision to take disciplinary action are very limited (Strouthos).[186]It is an elementary principle of justice that the employee should know the case he or she has to meet. It is equally obvious that it is the employer's obligation to put that case so that on a fair and common sense reading of the relevant documentation, the employee could be expected to know what charges he or she has to address. The question is not what charges the employer may have been entitled to charge on the material provided to the employee; it is what charges have in fact been made (Sattar v Citibank NA [2020] IRLR 104 at [56]). Wrongful dismissal[187]Wrongful dismissal is a claim of breach of contract by the employee against the employer for the unpaid notice pay.[188]The question of what level of misconduct is required for an employee's behaviour to amount to a repudiatory breach is a question of fact for the court or tribunal. The question is whether the conduct "so undermine[s] the trust and confidence which is inherent in the particular contract of employment that the employer should no longer be required to retain the employee in his employment" (Neary v Dean of Westminster [1999] IRLR 288, approved by the Court of Appeal in Briscoe v Lubrizol Ltd [2002] IRLR 607 and by the Privy Council in Jervis v Skinner [2011] UKPC 2). Direct age discrimination[189]Section 13(1) of the Equality Act 2010 states as follows: - (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[190]The protected characteristics relied upon by the Claimant is age. Age is a protected characteristic under the Equality Act 2010. Section 5 of the Act provides: “(1) In relation to the protected characteristic of age –(a) A reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;(b) A reference to persons who share a protected characteristic is a reference to persons of the same age group. (2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.”[191]The Tribunal should ask itself whether the Claimant has demonstrated facts from which the tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed, or is to be treated as having committed, an unlawful act of discrimination (s.136 Equality Act 2010).[192]As a first stage, it is for the Claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed, or should be treated as having committed an unlawful act of discrimination Igen Ltd v Wong [2005] IRLR 258.[193]If it is proven that there was differential treatment, the second element of the burden of proof requires the Tribunal to consider whether the Respondent had a neutral reason for its conduct in relation to each allegation. The Tribunal can consider firstly whether the Claimant would have been treated in the same way ‘but for’ the fact that he was aged 19, and then turn to consider the ‘reason why’ the Respondent treated him so (B v A [2007] IRLR 576). In order to demonstrate that the reason for the treatment was because of the Claimant’s age, it should be more than a minor or trivial part of the cause (Villalba v Merrill Lynch Co Inc [2007] ICR 469).[194]Although the tribunal may look at all of the information globally when considering the second limb (see Madarassy v Nomura International plc [2007] ICR 867]), this does not negate the need for the tribunal to be satisfied that there are facts from which it could be established that the claimant was treated less favourably because of their protected characteristic, absent an explanation from the respondent (Hewage v Grampian Health Board [201]ICR 1054).[195]This Burden of Proof test applies equally to all protected characteristics.[196]S.13(2) above provides that Direct Discrimination because of age can be objectively justified. Direct Sex Discrimination[197]S.13(1) Equality Act applies equally for the protected characteristic of sex.[198]S.11Equality Act provides as follows: In relation to the protected characteristic of sex –(a) A reference to a person who has a particular protected characteristic is a reference to a man or a woman;(b) A reference to persons who share a protected characteristic is a reference to persons of the same sex.[199]The first and second stages of the burden of proof test applies equally to direct sex discrimination and I do not repeat the law as detailed above.[200]Direct Discrimination because of sex cannot be objectively justified. Holiday Pay[201]The issue of holiday pay no longer arises as the Claimant has received the sums due to her. Submissions[202]Both representatives provided helpful submissions which the Tribunal has taken into consideration. Conclusions
The Issues
[203]The issues the Tribunal will decide are set out below. Unfair Dismissal[204]In reaching our conclusions. we will answer the questions raised in the agreed list of issues. This list has been prepared on the principles identified in BHS v Burchell.[205]We remind ourselves that we can only take account of those facts or beliefs that were known to those who took the actual decision to dismiss at the time of dismissal. Was the claimant dismissed?[206]This is admitted. What was the reason or principal reason for dismissal? The respondent says the reason was conduct. The Tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.[207]The circumstances of this case are as follows: 207.1. The care home is a stand alone care home that is part of a chain of homes operated by DMP Healthcare Ltd. 207.2. The care home was managed by a Care Home Manager and there was also an Operations Manager and Finance Director. The Respondent employs 80 people at the location where the Claimant worked. 207.3. The Respondent operates 9 other homes and has managerial roles that work at multiple home locations.[208]The circumstances for the disciplinary were: 208.1. The Claimant is a Senior Care Assistant and had been employed at the Respondent’s home for 10-years at the date of the incident. 208.2. There was an Incident on the night of the 9 November 2023, which resulted in the Resident falling out of bed and incurring an injury. 208.3. The Claimant admits moving the crash mat prior to the bed moving. 208.4. The Incident occurred when the bed moved due to the Resident rolling, causing him to fall to the floor. 208.5. The Claimant admits leaving the Resident to speak to Ms Munteanu. 208.6. Ms Munteanu told the Claimant to speak to the nurse. 208.7. There was an immediate supervision to record the incident. This was written by Andreea Zarif and records that the Claimant went into see the Resident to do personal care on her own. The Claimant stated at the supervision that the care plan allows one – two carers and gave the reason for the fall as the brakes being left off the bed. 208.8. There was a fall log completed for 72-hours post fall by the Claimant. This document records that the Claimant went into the Resident’s room to administer personal care. 208.9. An incident report was also completed at the time of the incident, this records the Claimant entering the room to administer the Resident’s 208.10. The Claimant stated that she only wanted to speak to the Resident about possible personal care. 208.11. An investigation meeting was held on 16 November 2023. Ms Hornsby spoke to the Claimant, Ms Zarif and Ms Tulsi. Ms Hornsby did not speak to Ms Munteanu. 208.12. Ms Hornsby reviewed the care records, care plans and the supervision notes. She also looked at the incident form. Ms Hornsby believed that the Claimant had completed the records on the evening. 208.13. In the investigation the Claimant informed Ms Hornsby that she had gone into the room to give personal care and had moved the mat because a drink had been split. The Claimant asserted that the plan allowed 1 – 2 carers to give personal care. 208.14. Ms Hornsby did not produce an investigation report. She shared her findings with Ms Munteanu and Mr Patel orally. 208.15. The Claimant was invited to a disciplinary meeting by email dated 16 November 2023. 208.16. A disciplinary meeting was held on 20 November 2023. 208.17. The Claimant stated in the disciplinary that she “had left to go assist the Resident to change his pad, I lift the crash mat and put it on the side. On my own.” 208.18. The Claimant stated that the care plan says 1 – 2 carers. She admitted that the brakes were not checked. She also mentioned that the crash mat was stained with a drink. 208.19. The Claimant was unaccompanied at the disciplinary hearing. 208.20. Ms Munteanu reviewed the care plans for the Resident, including the personal care plan and continence care plan. She also reviewed the documents prepared following the incident; incident report, supervision, fall log. Ms Munteanu believed that the Claimant had completed these forms.[209]Ms Munteanu believed that the Claimant had given personal care by herself, being continence care. The personal care plan provides for 1 or 2 carers. The incontinence care plan requires 2 carers.[210]Following the disciplinary, the Respondent dismissed the Claimant for Conduct. There is no conduct identified in either the disciplinary invite or outcome. In evidence the Tribunal were told by Ms Munteanu that the conduct of the Claimant was: 210.1. Providing care by herself when the care plan required 2 carers 210.2. Not checking the brakes on the bed. 210.3. Failing to press the emergency buzzer and leaving the Resident.[211]The circumstances at the appeal stage were as follows: 211.1. The Claimant was invited to an appeal meeting, but that letter has not been produced in evidence. 211.2. Mr Balog, the Operations Manager, was appointed by Mr Patel to conduct the appeal. 211.3. An appeal meeting was heard on 13th December 2023 and the Claimant was accompanied by her Union Representative. 211.4. Prior to the appeal meeting Mr Balog reviewed the Claimant’s appeal and was aware of the disciplinary allegations. 211.5. The Claimant was allowed to discuss her grounds of appeal. She said the following: 211.5.1. That she had had insufficient time to prepare for the disciplinary. 211.5.2. That Ms Munteanu should not have been the disciplinary manager 211.5.3. That the punishment was too harsh. 211.5.4. That she “under no circumstances, entered the Resident’s room to provide care as it is and, agreed that checks can be done by one person only only and for the second person to be called in to support if personal care support was required”. 211.6. Mr Balog adjourned the hearing to make further enquiries. 211.7. Mr Balog interviewed Ms Zarif and Ms Tulsi and provided these statements to the Claimant during to the second appeal meeting. The notes of Ms Zarif’s interview have not been provided. 211.8. A second appeal meeting was held on 5 January 2023. Mr Balog had reviewed the Devices and questioned the Claimant about the entry at 20:58 regarding the continence care. 211.9. The Claimant told Mr Balog about the issue with the Devices and that the 20:58 record was not her. 211.10. Mr Balog told the Claimant that he was looking for the root cause of what has happened and if the Claimant had been the last one to see him then that would imply that she left the bed unsecured. 211.11. After the second appeal, Mr Balog reviewed the statements, the care plans and reviews, the Fall observation note, the allegations against Ms Munteanu being that she was bias, the Care notes including device logs, mobility care plan, care plan reviews, Safe environment plan, Continence care plan. Mr Balog believed that the Claimant had completed the forms as completed on the evening of the Incident.[212]Mr Balog issued an outcome letter dated 15 Jan 2024.[213]Following the Appeal, the Respondent upheld the dismissal for the reason of Conduct. There is no conduct identified in any appeal invitation. The outcome letter identifies the following conduct: 213.1. Contradictory statements; 213.2. Failure to comply with the care plan; 213.3. That the Care Plans required 2-carers; 213.4. That she denied writing the fall log that stated the purpose of entering the room was to give personal care. 213.5. That the care notes had discrepancies, and that the Claimant denied these discrepancies.[214]In evidence, Mr Balog told the Tribunal that in addition to the contradictory statements from the Claimant, the conduct of the Claimant was: 214.1. Providing care by herself when the care plan required 2 carers 214.2. Not checking the brakes on the bed. 214.3. Failing to press the emergency buzzer and leaving the Resident[215]The Respondent gives the reason for the dismissal as the conduct of the Claimant. If the reason was misconduct, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether there were reasonable grounds for that belief;[216]This is a multi-site organisation. There are managers at each home and also managers who operate on a regional basis, such as Mr Balog who was operations[217]At disciplinary the grounds for the belief are: 217.1. Contemporaneous documents, including the incident report, the fall log and the supervision; 217.2. Claimant admitted she was going into the Resident’s room to give personal care, including to check whether the Resident’s pad needed changing. The Respondent believed this was for continence care. 217.3. Claimant admitted leaving the Resident on the floor, but that this was to speak to her manager (Ms Munteanu), who told her to speak to a nurse.[218]At appeal the grounds for the belief were: 218.1. The Claimant denied writing the device log at 20:58 on the day of the incident, where the Device was logged to her. 218.2. That the continence care plan provided for 2-carers to carry out care. 218.3. That the post fall report states that the Claimant went into the room to give personal care. The Respondent believed this to be continence care. 218.4. That the home manager was not biased. 218.5. That there were discrepancies in her care notes. At the time the belief was formed the respondent had carried out a reasonable investigation. Reasonableness of belief at disciplinary[219]At the time of the disciplinary the investigation included: 219.1. Review of documents from the incident. 219.2. Review of care plans. Continence and personal care. 219.3. Investigation interview with the Claimant with admissions. 219.4. Investigation interview with Ms Zarif and Ms Tulsi. 219.5. Disciplinary meeting with the Claimant, in which she admitted she had entered the room to change the Residents pad.[220]However, there is no investigation report and no record of the interviews with Ms Zarif and Ms Tulsi and the investigation manager did not interview Ms Munteanu.[221]Ms Munteanu carried out no further investigation prior to making her decision to dismiss.[222]The Respondent’s belief that the claimant had gone into the room to give personal care is founded on the admission of the Claimant that she had gone into the room to give personal care. The Respondent believed this to be continence care. The Claimant also admitted moving the mat, which was the cause for the bed to move.[223]During the investigation and disciplinary the Respondent has referred the Claimant to care plans that show 2-carers to assist. However, the care plan for personal care dated as late as September 2023 shows 1 – 2 carers.[224]At the disciplinary, the Respondent had not spoken to Ms Munteanu. We find that it was reasonable for the Respondent to believe that: 224.1. The Claimant had gone into the room to give personal care, this was admitted. 224.2. That the Claimant had moved the crash mat, again admitted. 224.3. That the care plan for personal care was 1 – 2 carers, and the care plan for continence care was 2-carers. 224.4. The Claimant left the room leaving the Resident alone, again admitted. 224.5. That the buzzer was never pressed. 224.6. The Claimant had gone into the room to change the Resident’s pad, based on the disciplinary interview. 224.7. That the Claimant had completed the incident report, the fall log and the supervision.[225]However, we find it unreasonable that: 225.1. The investigation manager, Ms Hornsby, didn’t speak to Ms Munteanu. 225.2. The disciplinary manager was Ms Munteanu, who was a witness to the events of the 9 November 2023. 225.3. The Claimant had not received the invitation letter before the disciplinary. 225.4. The question of the failure of pressing the buzzer is not recorded in either the investigation or disciplinary meeting notes. 225.5. The Claimant was unaware of the allegations against her and did not know she could be accompanied.[226]At this stage we find that the investigation at the disciplinary was unreasonable and that the belief held by the Respondent was unreasonable. Reasonableness of belief at appeal[227]At the time of the appeal the investigation included: 227.1. Oral communication of the investigation and disciplinary findings. 227.2. Examination of the Device logs 227.3. Review of contemporaneous documents. 227.4. Statements from Ms Zarif and Ms Tulsi[228]At the appeal, the Respondent had spoken to Ms Munteanu. We find that it was reasonable for the Respondent to believe that: 228.1. That the Claimant had completed the incident report, the fall log and the supervision. 228.2. The Claimant had gone into the room to give personal care, this was admitted. 228.3. That the Claimant had moved the crash mat, again admitted. 228.4. That the care plan for personal care was 1 – 2 carers, and the care plan for continence care was 2-carers. 228.5. The Claimant left the room leaving the Resident alone, again admitted. 228.6. The Claimant had gone into the room to change the Resident’s pad, based on the disciplinary interview. 228.7. The Device records that the Claimant provided the Resident with incontinence care at 20:58. The Claimant denied giving this care at the first appeal meeting. 228.8. At the second appeal meeting, regarding the Device at 20:58, the Claimant states that the entry was by someone else, but on her Device. Mr Balog did not accept that explanation and believed that the Claimant had performed continence care for the Resident at 20:58.[229]However, the belief held following the appeal was unreasonable because: 229.1. The Claimant did not receive an invite letter to the appeal or any letter detailing her alleged conduct that amounted to gross misconduct. 229.2. The Claimant did not receive copies of the documents relied upon during the disciplinary and appeal process, other than the statements during the second appeal. 229.3. There is no record of the failure to press the buzzer being discussed with the Claimant.[230]If is a fundamental principal of justice that the Claimant should have been informed of the case against her. There are differences in care plan requirements between the personal care and continence care plans and confusion between the two. Additionally, the issue of the buzzer was not put to the Claimant and no documentation in relation to it, or the training on it was adduced in evidence. Other than the provision of the disciplinary policy and the statements during the second appeal meeting, no documents were sent to the Claimant to enable her to prepare. Taking a common-sense approach to the reading of the documents that were sent to the Claimant, the Claimant could not be expected to know what charges she was facing at the time of the disciplinary or the appeal.[231]Taking a holistic approach, we have asked ourselves whether the Respondent acted reasonably and fairly in these circumstances and could it properly have accepted the facts and opinions which it did. We find that the Respondent did not act fairly in these circumstances in accepting the facts that they found when the foundation for those facts, i.e. the charges against the Claimant, were never set out for her to properly consider.[232]We find that the further investigation by Mr Balog did not remedy the previously unreasonable investigation. The belief held by the Respondent, whilst genuine, was therefore unreasonable. Was dismissal within the range of reasonable responses.[233]Our starting point to consider this question is s.98(4) ERA and we remind ourselves that this question is in relation to the reasonableness of the respondent’s conduct and not what we consider to be fair. Additionally, we may not substitute the employer’s decision with our decision as to what was the right course of action to adopt. We are to consider whether, in all of the circumstances, a reasonable employer would consider that the actions of the claimant were sufficient to warrant a dismissal.[234]In considering this we take into account all of the circumstances of the case as detailed above. We have found that the respondent formed a genuine belief that the claimant acted in the manner alleged but that this was not a reasonable belief to hold. We have found that there was not a reasonable investigation upon which to form this belief.[235]In finding that the Respondent did not conduct a reasonable investigation we do not direct ourselves to consider the “band of reasonable responses” or to consider the question as to whether the respondent has acted reasonably or unreasonably in deciding to dismiss in accordance with equity and the substantial merits of the case. Did the respondent otherwise acted in a procedurally fair manner;[236]We have considered the procedure in this case and we find that the procedure by the respondent was flawed at all stages in that: 236.1. Investigation officer failed to interview Ms Munteanu. 236.2. There are no written records of the investigation statements. 236.3. Ms Munteanu was appointed Disciplinary manager despite being a witness to the Incident. The Respondent had other independent managers who could have been appointed, for example Mr Balog or Mr Patel for the appeal. 236.4. The disciplinary invite did not detail the alleged conduct of the Claimant. 236.5. The Claimant did not receive the disciplinary invite beforehand or any supporting documents. 236.6. There was no warning as to Gross Misconduct and the potential outcome of dismissal. 236.7. The Claimant was given insufficient time to prepare for the disciplinary. 236.8. The Claimant was not informed that she had the right to be accompanied prior to the meeting. 236.9. There was no written outcome detailing the alleged conduct or any reason for the decision that had been made. 236.10. There was no appeal invitation to remedy the disciplinary defects.[237]We find that the appeal and its additional investigation did not rectify the procedural errors of the disciplinary as without clear charges, the Claimant was unable to prepare for this process at any time.[238]We find that the whole process was flawed throughout.[239]We conclude that the dismissal was unfair. Wrongful dismissal / Notice pay What was the claimant’s notice period?[240]The Claimant was entitled to one week of notice for every year of service. She had 10-years’ service as at the termination date, meaning that the notice period due from the Respondent would be 10-weeks’ pay. Was the claimant paid for that notice period?[241]The Claimant was dismissed without notice. If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice?[242]At the point of the dismissal we have found that the Respondent was seeking clarification from the Claimant regarding the Incident. The Incident occurred when the Claimant returned to the Resident’s room at 21:55 and we have accepted that she went into the room to determine if the Resident needed[243]The care plan for personal care as of September 2023 allowed for care to be carried out by 1 – 2 carers.[244]In evidence, it was asserted that the Claimant did not press the buzzer and we have found that the policy does not require the emergency buzzer to be pressed. In any event, the Clamant sought assistance immediately.[245]The Claimant admitted to Ms Munteanu in the disciplinary that she had entered the room to give continence care. We have found that she carried out continence care at 20:58 and the care plan for continence care for the Resident requires 2-carers to carry out this care procedure.[246]At the point of the dismissal, i.e. the disciplinary stage, the Claimant had been open with the Respondent as to her actions that led to the Incident and her belief that the care plan stated 1 – 2 carers.[247]We have found that the Claimant was not aware of the charges against her and that no evidence was produced that set out the consequences of failing to comply with the care plans and / or failing to press the emergency buzzer.[248]We accept that failing to comply with a care plan and / or pressing the emergency buzzer could reasonably amount to misconduct, but in circumstances where the seriousness of these failings have not been set out in writing, we find that the Claimant’s actions did not amount to a fundamental breach of contract.[249]We find that the Respondent was not entitled to dismiss without notice and that the Claimant was wrongfully dismissed. Direct sex and / or age discrimination (Equality Act 2010 section 13) The claimant’s sex is female and they compare their treatment with those who are male. The Claimant’s age is over 60 and she compares herself with younger employees. Did the respondent do the following things: Dismiss the claimant Burden of Proof[250]In the first instance we consider the burden of proof; has the Claimant satisfied[251]The primary facts found in relation to the dismissal that the Claimant has established are: 251.1.1. That she completed forms at the time of the incident confirming her reason was to carry out personal care. 251.1.2. She admitted in the disciplinary to continence care. 251.1.3. The Claimant did not press the emergency buzzer. 251.1.4. The Claimant left the Resident to seek help. 251.1.5. The Device recorded that the Claimant provided continence care. 251.2. We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Not answering the claimant’s questions in management meetings.[252]In the first instance we consider the burden of proof; has the Claimant satisfied[253]The primary facts found in relation to not answering the Claimant’s questions in management meetings that the Claimant has established are: 253.1. The Claimant did not produce any evidence.[254]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Treating the claimant with contempt.[255]In the first instance we consider the burden of proof; has the Claimant satisfied[256]The primary facts found in relation to treating the Claimant with contempt that the Claimant has established are: 256.1. The Claimant did not produce any evidence[257]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Rush the disciplinary process.[258]In the first instance we consider the burden of proof; has the Claimant satisfied[259]The primary facts found in relation rushing the disciplinary process that the Claimant has established are: 259.1. Incident 9 November 2023 259.2. Investigation and Suspension on 16 November 2023. 259.3. Disciplinary 20 November 2023. 259.4. Outcome 22 November 2023. 259.5. Appeal 24 November 2023. 259.6. 1st Appeal 13 December 2023. 259.7. 2nd Appeal 5 January 2024. 259.8. Outcome 15 January 2024[260]On facts, we find that whilst the disciplinary stage was rushed, the circumstances of the conduct being investigated were not complex and did not involve more than 4-people, including the Claimant. Additionally, the additional investigations at the appeal stage, slowed the overall process.[261]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Fail to provide the claimant’s Trade Union Representative with documents as requested.[262]In the first instance we consider the burden of proof; has the Claimant satisfied[263]The primary facts found in relation to not sending the documents to the Claimant’s Trade Union official that the Claimant has established are: 263.1. The Claimant did not produce any evidence of this.[264]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Falsify statements from witnesses to the incident on the 09 November 2023.[265]In the first instance we consider the burden of proof; has the Claimant satisfied[266]The primary facts found in relation to the falsification of witness statements that the Claimant has established are: 266.1. Statement of Ms Tulsi dated 13 December 2025[267]We have found that the statement of Ms Tulsi dated 13 December 2023, is consistent with the Claimant’s own evidence.[268]We are not satisfied that there are primary facts from which the Tribunal could, in the absence of any other explanation, determine that discrimination took place. Holiday Pay (Working Time Regulations 1998)[269]The Claimant’s holiday pay claim was resolved prior to the hearing.
The Issues
[1]The complaint of unfair dismissal is well-founded. The claimant was unfairly dismissed.[2]There is a 0% chance that the claimant would have been fairly dismissed in any event.[3]The respondent unreasonably failed to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015 and it is just and equitable to increase the compensatory award payable to the claimant by 20% in accordance with s 207A Trade Union & Labour Relations (Consolidation) Act 1992.[4]The claimant did not cause or contribute to the dismissal by blameworthy conduct and it is not just and equitable to reduce the compensatory award payable to the claimant.[5]It is not just and equitable to reduce the basic award payable to the claimant because of the claimant’s conduct before the dismissal.[6]The respondent shall pay the claimant the following sums: 6.1. A basic award of £6,502.86 net. 6.2. A compensatory award of £9,537.53 net. 6.3. Interest of £952 net. 6.4. An award for loss of pension of £364.03 gross 6.5. An award as damages for breach of contract of £4,335.24 net. These are actual the sums payable to the claimant after any deductions or uplifts have been applied. Where required, the respondent remains responsible for any tax or national insurance payments in addition to these awards. Written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]Following a full merit hearing on 12, 13, 14 and 18 February 2025, a reserved judgment was sent to the Parties on 14 April 2025. This Judgement determined that the Claimant had been Unfairly and Wrongfully dismissed. All other claims were not well founded and were dismissed.[2]Case Management Orders were sent to the parties on 07 August 2025, which included the list of issues to be determined at this remedy hearing.[3]The Claimant was represented for a short period prior to this remedy hearing, but the solicitors came off the record before this hearing but after making an application to postpone. This postponement application was refused, although not communicated to the parties.[4]The parties attended as required and neither party was legally represented.
The hearing
[5]In addition to the original bundle, we also had a bundle of 5-pages of financial documents from the Claimant.[6]We heard evidence from the following: 6.1. Mrs Henrietta Thomas. 6.2. Ms Michaela Munteanu 6.3. Mr Lucian Balog Conduct of the Hearing[7]All of the witness were cross examined by the other party and all were permitted to reflect on the questions they had been asked to provide further information as self-re-examination, if they wished to do so. Findings of fact[8]The Respondent operates a care home and the Claimant was employed by it from 25 October 2013 as a health care assistant, until her employment was terminated on 22 November 2023 without notice. The Claimant had 10-years of continuous service.[9]The Claimant was 59-years’ old on the date her employment was terminated.[10]The Claimant provided 4 payslips from her employment with the respondent; the following sums are a mean average of the payments made during this period. The Claimant worked 33-hours’ per week and was paid £1581.67 per month net. This equates to £361.27 per week net. She received no other benefits.[11]The Claimant received an additional pension payment from the employer of £41.10 gross per month, which equates to £9.48 per week gross.[12]The figures given in these payslips were not disputed.[13]The Claimant had a contract of employment that was signed and dated on 09 April 20215. Findings of fact regarding loss of earnings past and future[14]The Claimant stated that she sought new work immediately after her dismissal on 20 November 2023. She stated that she was unable to obtain work as a carer as she did not have a DBS certificate, which she was obliged to have.[15]The Claimant states that the delay in obtaining the certificate was due to the safeguarding report following the incident with the resident.[16]The respondent states that the delay was simply because of the DBS process and nothing to do with the safeguarding report.[17]We find that the respondent was obliged to make the safeguarding report and acted properly in doing so. We also find that any further investigation or enquiries were a matter for the Local Authority.[18]We find that if there was a delay to the provision of the DBS Certificate was not as a consequence of the actions of the respondent, but due to the process of obtaining a certificate.[19]The Claimant received a new certificate in September 2024 when this was required by the university to enable her to continue her studies.[20]The Claimant obtained new employment in July 2024 working 3-days per week but not in a caring role. The Claimant received £320.71 net per week. This was not disputed by the Respondent.
The claims
[21]When determining the hourly rate, we find that the Claimant’s new employment paid a higher net hourly rate than her employment with the respondent.
Background
[22]The Claimant left employment in October 2025 to concentrate on her studies.[23]The period between 20 November 2023 to 01 July 2024 is a period of 32-weeks. Findings of fact regarding mitigation[24]The Claimant stated she applied for 6 or 7 jobs in the care industry and that she was unable to obtain further work because the DBS certificate had not been issued.[25]Neither party provided evidence of either the Claimant’s endeavours to provide work, or the potential opportunities open to her. It was for the Respondent to provide evidence of possible roles, but it did not do so. In the circumstances, we accept the Claimant’s evidence that she was looking for new work but was unable to do this in the care sector because of the DBS Certificate.[26]The claimant sought financial help from her brother. Findings of fact regarding procedure[27]We have found that the whole disciplinary process was fundamentally flawed. At no time was the claimant informed of the charges against her, which we have found impacted on her ability to answer the charges she faced.[28]We have found that the respondent’s procedure had the following failings: 28.1. Neither the disciplinary nor appeal invitations detailed the charges. 28.2. The Claimant was not aware that she could be accompanied. 28.3. The Claimant was not aware of the seriousness of the charges. 28.4. The respondent failed to provide copies of policies, procedures and other witness statements. 28.5. The respondent failed to interview the manager who was a witness until the appeal stage. 28.6. The respondent used the manager who was a witness on the day of the incident as the disciplinary manager. 28.7. The process was rushed at the investigation and disciplinary stages and the claimant was not given a proper opportunity to prepare. 28.8. The respondent failed to provide proper written records such as an investigation report and other relevant meeting notes.[29]The failings by the respondent were numerous and we have found that it was fundamentally flawed and the respondent’s manager, Ms Munteanu, accepted that if a proper procedure had been followed there could be a different outcome, albeit the respondent maintained that the decision would have still been to dismiss. Findings of fact regarding Acas Code of Practice on Disciplinary and Grievance Procedures[30]Within our findings in the reserved judgment, we have determined the following: 30.1. That the investigation and disciplinary were both rushed. 30.2. That the Claimant was unaware of the charges against her and was not given the time or opportunity to prepare. 30.3. That the Claimant and her Trade Union Representative were not provided with all of the relevant documents, including policies, procedures and additional statements. 30.4. That the procedure leading to the Claimant’s dismissal was fundamentally flawed. Findings of fact regarding contribution[31]Within our reserved judgment we have found the following: 31.1. That the Claimant went into the resident’s room at 2058 and carried out continence care. 31.2. That the Claimant had the belief that this was permitted by 1 – 2 carers further to the September 2023 personal care plan. 31.3. That the Claimant did not press the emergency buzzer. 31.4. That policies and procedures do not detail the requirement to press the buzzer. 31.5. That the policies and procedures do not detail the consequences of failing to follow the personal care plans or pressing the emergency buzzer. 31.6. The Claimant sought assistance immediately from her manager and then the nurse on duty, as per the manager’s instructions. 31.7. The Claimant was never told, in writing, of the charges against her or of the potential consequences.
Findings of fact
[32]We have also found that the dismissal was both unfair and wrongful. The law Remedy for unfair dismissal
The law
[33]In considering any remedy for an unfair dismissal, the Tribunal must apply s.123 ERA 96 which states: Subject to the provisions of this section and sections 124, 124A and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all of the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as it is attributable to action taken by the employer.[34]Compensation for unfair dismissal is made up of basic and compensatory awards. Considering each in turn: Basic Award[35]Unless there is a statutory minimum basic award, the basic award is calculated on the same basis as a statutory redundancy payment and takes into account the Claimant’s age and length of service. The basic award can be reduced for contributory conduct (s.122(2) ERA 96) but is not subject to any further adjustments such as a failure to mitigate loss, a failure to comply with a code of practice, or the chance of a future fair dismissal (Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL)).[36]This is a taxable payment and counts towards the £30,000 tax free amount on termination. However, recoupment does not apply.[37]Contributory conduct: The basic award may be reduced where the tribunal ‘considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such as it would be just and equitable to reduce or reduce further the amount of the award to any extent...’ s.122(2)ERA96. Compensatory Award[38]Compensation for unfair dismissal should be awarded to ‘compensate and compensate fully, but not to award a bonus’ according to Sir John Donaldson in Norton Tool Co Ltd v Tewson [1973] All ER 183. The object of the compensatory award is to compensate the employee for their financial losses as if they had not been unfairly dismissed. It is not designed to punish the employer for their wrongdoing.[39]The calculation of compensation can be structured to include: 39.1. Immediate loss of earnings 39.2. Future loss of earnings Immediate loss of earnings[40]This is the loss suffered between the effective date of termination to the date of the remedies hearing. Loss of earnings will be calculated on the basis of net take home pay. This award should include any pay increase which would have been awarded in the previous employment up to the date of the hearing, including a back-dated pay rise. Conversely, if the claimant would probably have been paid less than their net earnings at the EDT in this period if they had not been dismissed (for example because of the financial constraints on the respondent at the time), the amount of loss of earnings can be correspondingly reduced.[41]The employer’s liability will normally cease before the date of the remedies hearing if the employee has (or ought to have) got a new permanent job paying at least as much as the old job as there will no longer be a loss arising from the dismissal.[42]For claims relating solely to unfair dismissal the period of immediate loss is the number of weeks between the EDT and the remedies hearing, or the date of a new equivalent job, or the date by which the claimant should have found a new job, whichever is the soonest. If a claim for wrongful dismissal has also been made, the number of weeks for the unfair dismissal immediate loss of earnings should be calculated from the date at which the wrongful dismissal damages period ends through to the date of the hearing, new job or expectation of a new job. Future loss of earnings[43]An employee may have ongoing future losses if by the date of the remedies hearing they have not secured a new job or have obtained a job but with salary and benefits that are less valuable than their previous employment. The future loss figure is based on the number of weeks for which it is calculated the particular loss will continue, and it may be that pay rises in the future will reduce the loss suffered in each of those years.[44]The tribunal should take into account the personal characteristics of the employee such as age and health. They also need to take into account contingencies such as whether and for how long the employee would have remained in the original employment, whether there would have been a possibility of promotion and whether the level of earnings would have remained the same.[45]To apply s.123 ERA to these awards, the Tribunal is also obliged to consider the length of time for which an award should be made. This is a further consideration separate to any procedural or contribution potential reductions. To fulfil this requirement, the Tribunal must, as best as it can, assess the future loss sustained by the Claimant in consequence of the dismissal and attributable to the action of the respondent. It must do this in a principled way further to Software 2000 Ltd v Andrews [2007] ICR 825 and Contract Bottling Ltd v Cave [2015] ICR 146.[46]Polkey. This award can be made subject to a “Polkey” reduction (Polkey v AE Dayton Services Ltd [1987] IRLR 50 (HL), which is a reduction to reflect the chance that the individual would have been dismissed in any event. This can be applied as either a percentage or by reference to a length of time the Tribunal considers it would have taken for the claimant to have been dismissed fairly, such as how long a fair procedure would have taken. This question is to be considered with regards to whether the particular employer would have dismissed the claimant in any event had the unfairness not occurred.[47]The tribunal must assess any Polkey deduction in two respects: 47.1. If a fair process had occurred, would it have affected when the claimant would have been dismissed? and 47.2. What is the percentage chance that a fair process would still have resulted in the claimant’s dismissal?[48]Where there is a significant overlap between the factors taken into account in making a Polkey deduction and when making a deduction for contributory conduct, the Tribunal should consider expressly, whether in the light of that overlap, it is just and equitable to make a finding of contributory conduct, and, if so, what its amount should be. This is to avoid the risk of penalizing the claimant twice for the same conduct. Lenlyn UK Ltd v Kular UKEAT/0108/16/DM).[49]Acas: This award can also be subject to a percentage increase or reduction up to a maximum of 25% to reflect an unreasonable failure by the employer or employee to comply with the ACAS code of practice on disciplinary and grievance procedures.[50]Contributory conduct: Additionally, a percentage reduction for contributory conduct by the Claimant can also be applied. S.123(6) ERA96 ‘where the tribunal finds that the [act] was to any extent caused or contributed to by any action of the complainant, [the tribunal] shall reduce the amount of the compensatory award by such proportion as it considers just and equitable...’.[51]To fall into this category, the claimant’s conduct must be ‘culpable or blameworthy’. Except for the basic award, such conduct must cause or contribute to the claimant’s dismissal, rather than its fairness or unfairness.[52]In assessing contribution, the tribunal should in turn: 52.1. Identify the relevant conduct; 52.2. Assess whether it is objectively culpable or blameworthy; 52.3. Consider whether it caused or contributed to the claimant’s dismissal; and 52.4. If so, determine to what extent it is just and equitable to reduce any award. (Steen v ASP Packaging Ltd UKEAT/0023/13/1707).[53]The sums awarded are taxable where the award of the basic and compensatory awards exceed £30,000. Wrongful Dismissal[54]Damages can be awarded if the employee has been dismissed without the appropriate length of notice.[55]The damages will cover the lost remuneration and benefits that would have been received during the full notice period.[56]Damages for wrongful dismissal are assessed applying the “least burdensome performance” rule, namely that the Tribunal will assess them on the basis that the employer would have terminated the contract in the least burdensome method permitted under its terms. This usually means dismissal on the contractual minimum notice period or pay in lieu of notice. This principle was recently reaffirmed by the Court of Appeal in MacKenzie v AA Ltd [2022] EWCA Civ 901.[57]There is no limit on a week’s pay, and the statutory definition of a week’s pay does not apply.[58]Damages can be reduced for mitigation or failure to mitigate, and reduced or increased for failure by the employer or employee to comply with the ACAS code of practice (TULR(C)A 1992 s207A and Schedule A2).[59]The award for damages for wrongful dismissal is taxable under s401 ITEPA 2003 and will fall to be grossed up to the extent it causes the £30,000 allowance to be exceeded. Submissions[60]Both representatives provided helpful skeleton arguments, which the Tribunal has taken into consideration. Remedy Remedy for unfair dismissal Does the claimant wish to be reinstated to their previous employment?
Remedy
[61]The Claimant does not wish to be reinstated or re-engaged. If there is a compensatory award, how much should it be? The Tribunal will decide:[62]The Claimant was dismissed on 20 November 2023, having been employed by the Respondent since 25 October 2013.[63]The Claimant started new work in July 2024, which is 32-weeks after her dismissal. What financial losses has the dismissal caused the claimant?[64]The Claimant did not work in the 32-weeks following her dismissal, and her total loss of earnings amounts to 32 x £361.27 = £11,560.64 net[65]The Claimant also did not receive her pension contributions for this period. This amounts to 32 x £9.48 gross = £303.36 gross.[66]The Claimant obtained new work in July 2024, for which she received a higher rate of pay. The Claimant’s loss of earnings stopped at the point at which she started this new employment. Has the claimant taken reasonable steps to replace their lost earnings, for example by looking for another job?[67]We have found that the Claimant sought new work immediately, but that her attempts to obtain similar work was hindered by the delay in the provision of the DBS Certificate.[68]We have found that the delay to the certificate was not due to the fault of either party and it is therefore not unreasonable that this caused a delay to the Claimant being able to find suitable similar work.[69]The claimant did not claim benefits and was using her savings and assistance from her brother.[70]We conclude that the Claimant was taking reasonable steps to replace her lost earnings and that it was reasonable for her to take 32-weeks to do so. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?[71]The failings by the respondent were numerous and the whole process was fundamentally flawed.[72]The initial process of investigation and disciplinary were rushed and the Claimant was unaware of the charges against her. Even at the appeal stage, the claimant was unaware of the charges against her, including a breach of trust and confidence, and did not have all the information or witness statements made available to her.[73]We conclude that the issue of the consistency of answers by the Claimant at each stage of the process would have been addressed if she had been informed of the charges and understood the documents the respondent was relying upon. As it was, the rushed and flawed process, led to confusion. The Claimant had been expecting to return to work following a period of sick leave and was suspended and subsequently dismissed without a full understanding of the charges or the consequences. Additionally, the disciplinary occurred very quickly thereafter and the Claimant did not receive the disciplinary invite. Even if she had, it did not included details of the alleged misconduct or other relevant details.[74]At the appeal stage, the Claimant did not receive an invitation letter, so again she remained uninformed of the actual charges and misconduct allegations.[75]The respondent has relied upon the Claimant’s inconsistency in her answers to justify the dismissal. We have concluded that the flawed procedure created this confusion and disorientated the Claimant.[76]In the circumstances, we conclude that had the procedure been full and fair, the Claimant would not have been dismissed. If so, should the claimant’s compensation be reduced? By how much?[77]We conclude that the claimant’s compensation should not be reduced in relation to the procedure. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?[78]The Acas Code of Practice on disciplinary and grievance procedures applies to conduct dismissals. Did the respondent or the claimant unreasonably fail to comply with it by: 78.1. Rushing the procedure 78.1.1. We have found that respondent rushed the investigation and disciplinary stages of the procedure. 78.2. Failing to provide the Claimant’s trade union representative with documentation. 78.2.1. We have found that the Claimant’s TU representative was not provided with the relevant documents. 78.3. Failing to give the claimant a fair hearing? 78.3.1. We have found that the respondent’s procedure was fundamentally flawed because it failed at both the disciplinary and appeal stages to provide the Claimant with the relevant details of the charges against her and the potential consequences. This, combined with the failure to provide copy documents and the failure to keep relevant records draws the conclusion that the respondent failed to give the Claimant a fair hearing. If so is it just and equitable to increase or decrease any award payable to the claimant? By what proportion, up to 25%?[79]We conclude that in these circumstances, it is just and equitable to increase the award to the Claimant.[80]We have found that the investigation and disciplinary stages were fundamentally flawed and whilst the appeal endeavoured to re-hear the case, the effect of it was only partial as the fundamental flaws remained, including the failure to provide details of the specific charges. We conclude that it is just and equitable to uplift the Claimant’s award by 20%. If the claimant was unfairly dismissed, did they cause or contribute to dismissal by blameworthy conduct?[81]We have found that there were some actions by the Claimant that were relevant including: 81.1. Her admission of moving the bed mat. 81.2. Her statement that the personal care plan allow 1 – 2 persons, which was incorrect. 81.3. That she had administered continence care earlier in the evening. 81.4. That the claimant had gone into the room to administer personal care. 81.5. That the claimant left the room to seek assistance. 81.6. That she did not press the emergency buzzer.[82]We have also found that the use of the buzzer is not referred to in the relevant policies and procedures, nor were details of any training on it provided. We have accepted it would be reasonable for the Claimant to press it, but it was also reasonable for her to seek assistance from her manager.[83]The culpable conduct was never properly put to the Claimant and the confusion created by this failing has meant that the person who left the brakes off the resident’s bed was never determined.[84]We accept that the Claimant has made mistakes, the question for the Tribunal is whether this conduct was culpable and blameworthy. We have found that the process was flawed and created confusion as to the allegations being faced. We are not satisfied that the Claimant acted in a manner that was culpable or blameworthy. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion?[85]We conclude that there is no reduction to the Claimant’s compensatory award. Does the statutory cap of fifty-two weeks’ pay or £105,707 apply?[86]The cap does not apply. What basic award is payable to the claimant, if any?[87]The Claimant had 10-years of service and was 59-years old.[88]The basic award is £361.27 x 10 x 1.5 = £5,419.05 Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent?[89]For the reasons given above, it is not just and equitable to reduce the award to the claimant. Wrongful dismissal / Notice pay What was the claimant’s notice period?[90]The Claimant had a statutory entitlement to 10-weeks of notice. Was the claimant paid for that notice period?[91]The Claimant was not paid for that notice. If not, was the claimant guilty of gross misconduct? / did the claimant do something so serious that the respondent was entitled to dismiss without notice?[92]We have found that the Claimant was not guilty of gross misconduct and is entitled to £361.27 x 10 = £3,612.70 net Written Particulars When these proceedings were begun, was the respondent in breach of its duty to give the claimant a written statement of employment particulars or of a change to those particulars?[93]The Respondent was not in breach of its duty to provide written particulars as the contract provided in 2015 complies with s.1 of ERA. Remedy Conclusion and adjustments[94]Having given Judgment orally, the figures for each award have been checked and are amended to reflect the correct approach in considering the awards for wrongful dismissal and a compensatory award where the period of time overlaps.[95]Applying the uplift to each award: 95.1. The award for wrongful dismissal being 10-weeks of notice of £3,612.70 net, overlaps with the time period for the compensatory award. To ensure that there is no double award, the compensatory award will be reduced by the amount awarded for the wrongful dismissal. This wrongful dismissal award is provided separately as it is pay in lieu of notice and likely to be taxable. Additionally, an award for interest cannot be given for a breach of contract award in the Employment Tribunal. This award for wrongful dismissal is uplifted by 20% to give an award of £4335.24. 95.2. The basic award of £5419.05 is uplifted by 20% to give an award of £6,502.86 net 95.3. The compensatory award of £11,560.64 net is reduced by 10-weeks to prevent the double counting with the Wrongful Dismissal award. This award of £7,947.94 (£11,560.64 - £3,612.70) is uplifted by 20% to give an award of £9,537.53 net. 95.4. An award for loss of pension of £303.36 gross is uplifted by 20% to give an award of £364.03 gross.[96]We have considered whether to award interest on the compensatory award and determine that in all of the circumstances it is just and equitable to do so. An award of interest at 8% is made at the sum of ((£9,537.53 / 224 days) 100) x 8 = £4.25 per day for 224-days, giving a total interest award of £952.