Ms J McLean v London Borough of Enfield: 3301701/2023
EMPLOYMENT TRIBUNALS
Case No 3301701/2023
Between
Ms J McLeanClaimantLondon Borough of EnfieldRespondent
Before
Employment Judge Bedeau
Members
Ms L Jaffe Mrs S WellingsMr F Chimhini (instructed by Lay representative) for claimantMr T Lester (instructed by Counsel) for respondentDate 22 February 2025
JUDGMENT
[1]The claims of harassment related to race are not well-founded and are dismissed.[2]The claim of unfair dismissal is not well-founded and is dismissed.[3]The claim of direct race discrimination is dismissed upon withdrawal by the claimant.
REASONS
[1]In a claim form presented to the tribunal on 7 February 2023, the claimant made claims of: unfair dismissal; direct race discrimination; harassment related to race; direct disability discrimination by association, and wrongful dismissal.[2]In the response presented to the tribunal on 20 March 2023, the claims are denied. The respondent averred that the claimant was dismissed for gross misconduct, in that, she failed to provide nursing assistance to an end-of-life resident and had failed to reassure the resident’s daughter. A fair procedure was followed, and dismissal fell within the range of reasonable responses. It maintains that its workforce is racially diverse.[3]During the course of the hearing the claimant withdrew the claim of disability discrimination by association as it had been presented out of time. Accordingly, the tribunal dismissed that claim. The tribunal also dismissed the claim of direct race discrimination on 5 December 2024 upon withdrawal by the claimant. Only two claims were considered by the tribunal, namely, harassment related to race, and unfair dismissal.
The issues
[4]At the preliminary hearing held on 13 July 2023, before Employment Judge M Warren, sitting at Norwich, the case management orders were varied, and the parties were ordered to agree a final list of the claims and issues by 13 October 2023.[5]At the commencement of the hearing before us, we were presented with an agreed list of issues. From the list we removed the claims of direct race discrimination and direct disability discrimination by association, leaving harassment related to race and unfair dismissal. The acts of alleged harassment related to race, were with the assistance of Mr Chimhini, amended during the hearing. The final claims and issues are set out below with the appropriate deletions. They are as follows:- 3. Harassment related to race, section 26(1) and 27 Equality Act 2010(i) Did the respondent engage in any of the following unwanted conduct in relation to the claimant:(ii) The respondent encouraging a resident in May 2022, to make a false accusation of a safeguarding nature against the claimant.(iii) Bibi Codabaccus making continuous phone calls to the claimant when the claimant was on duty during medication round after the claimant had raised a grievance in January 2022.(iv) (Deleted)(v) Remarks made by Ms Codabaccus during flash meeting saying, “Let me just stop you there” and went on to belittle the claimant in front of other colleagues. This happened when the claimant was working days shifts.(vi) (Deleted)(vii) The respondent ignoring or failing to fully investigate the claimant’s grievances raised on (2 September, 20 October 2021 – (Deleted), 29 August, (2 September – (Deleted), 12 September 2022, (26 October 2022 – (Deleted).(viii) The respondent suspending the claimant on 22 June 2022.(ix) The respondent leaving the claimant on suspension from 22 June 2022 to 8 November 2022.(x) The summary dismissal of the claimant on 8 November 202.(xi) In so far as any of the above allegations are upheld, was the unwanted conduct related to the claimant’s race?(xii) If so, did any of the above unwanted conduct have the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?(xiii) If so, was it reasonable for the respondent’s actions and conduct to have that effect on the claimant? 4. Unfair dismissal, section 98(4) ERA 1996 and wrongful dismissal (i) What was the reason for dismissal, and was it a potentially fair reason under the ERA 1996? The respondent says that it dismissed the claimant for the potentially fair reason of conduct. The claimant says that the reason that she was dismissed was because of either her race or her son’s disability. (Reference to her son’s disability is no longer relevant as the associate disability discrimination claim had been withdrawn). (ii) If the reason for dismissal was conduct, did the respondent genuinely believe that the claimant was guilty of that misconduct? (iii) If so, was such belief based upon reasonable grounds having conducted a reasonable investigation? (iv) If so, was the decision to dismiss within the range of reasonable responses? (v) If the dismissal was unfair, was any unfairness remedied via the appeal process? The claimant complains in relation to the appeal process that:a. She was not given an opportunity to ask questions of witnesses.b. The Chair of the appeal did not ask question of either the claimant or witnesses.c. The Chair of the disciplinary hearing did not appear and was not heard at the appeal.d. There was untoward delay in an outcome. (vi) If the claimant’s dismissal was unfair, did she contribute to her dismissal by her conduct? If so, to what extent? (vii) If there was procedural unfairness, then in relation to Polkey, how likely is it that the claimant would have been dismissed in any event even if a fair procedure had been carried out? 5. Remedies (i) Is the claimant entitled to compensation including financial loss, injury to feelings and/or personal injury? (ii) Whether the claimant is entitled to the balance of four weeks’ pay in lieu of notice? (iii) What is the claimant’s loss of earnings? (iv) Has the claimant failed to take reasonable steps to mitigate her loss?
The law
[6]Section 98(1) Employment Rights Act 1996 (“ERA”), provides that it is for the employer to show what was the reason for dismissing the employee. Dismissal on grounds of conduct is a potentially fair reason, s.98(2)(b). Whether the dismissal is fair or unfair having regard to the reason shown by the employer, the tribunal must have regard to the provisions of s.98(4) which provides: “Where the employer has fulfilled the requirements of subsection (1), and 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 employees 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."[7]In the case of British Homes Stores v Burchell [1980] ICR 303, the EAT’s judgment was approved in the Court of Appeal case of Weddel & Co Ltd v Tepper [1980] ICR 286. The following must be established:a. First, whether the respondent had a genuine belief that the misconduct that each employee was alleged to have committed had occurred and had been perpetrated by that employee,b. Second whether that genuine belief was based on reasonable grounds,c. Third, whether a reasonable investigation had been carried out,[8]Finally, in the event that the above are established, was the decision to dismiss reasonable in all the circumstances of the case. Was the decision to dismiss within the band of reasonable responses?[9]The charge against the employee must be precisely framed Strouthos v London Underground [2004] IRLR 636. The ACAS Code of Practice 2020, states that in the notification of a disciplinary hearing, it should provide sufficient information about the alleged misconduct and possible consequences to enable the employee to prepare to answer the case at a disciplinary hearing, paragraph 4.14. In paragraph 4.16, at the disciplinary hearing, the employer is required to “state precisely what the complaint is and outline the case by going through the evidence that has been gathered. Ensure that the employee and their representative or accompanying person are allowed to see any statements made by witnesses and to question them.”[10]Even if gross misconduct is found, summary dismissal does not automatically follow. The employer must consider the question of what is a reasonable sanction in the circumstances Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854.[11]If the relationship of trust and confidence has broken down irretrievably there would be no alternative other than dismissal, and length of service is not relevant, Alexis v Westminster Drug Project [2024] EAT 188.[12]The tribunal must consider whether the employer had acted in a manner a reasonable employer might have acted, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT. The assessment of reasonableness under section 98(4) is a matter in respect of which there is no formal burden of proof. It is a matter of assessment for the tribunal.[13]It is not the role of the tribunal to put itself in the position of the reasonable employer, Sheffield Health and Social Care NHS Trust v Crabtree UKEAT/0331/09/ZT, and London Ambulance Service NHS Trust v Small 2009 EWCA Civ 220. In the Crabtree case, His Honour Judge Peter Clark, held that the question "Did the employer have a genuine belief in the misconduct alleged?” goes to the reason for the dismissal and that the burden of showing a potentially fair reason rests with the employer. Reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under s.98(4) ERA 1996. See also Secretary of State v Lown [2016] IRLR 22, a judgment of the EAT.[14]The range of reasonable responses test applies to the investigation as it does to the decision to dismiss for misconduct, Sainsbury's Supermarket Ltd v Hitt [2003] ICR 111 CA.[15]In the case of Taylor v OCS Group Ltd [2006] ICR 1602 CA, it was held that what matters is not whether the appeal was by way of a rehearing or review but whether the disciplinary process was overall fair.[16]The seriousness of the conduct is a matter for the employer, Tayeh v Barchester Healthcare Ltd [2013] IRLR 387 CA.[17]The Court of Appeal acknowledged that employment tribunals are entitled to find whether dismissal was outside the range of reasonable responses without being accused of placing itself in the position of being the reasonable employer or of adopting a substitution mindset. In Bowater-vNorthwest London Hospitals NHS Trust [2011] IRLR 331, a case where the claimant, a senior staff nurse who assisted in restraining a patient who was suffering from an epileptic seizure by sitting astride him to enable the doctor to administer an injection, had said, “It’s been a few months since I have been in this position with a man underneath me” was the subject of disciplinary proceedings six weeks later. She was dismissed for, firstly, using an inappropriate and unacceptable method or restraint and, secondly, for the comment made. The employment tribunal found, by a majority, that her dismissal was unfair. The EAT disagreed. The Court of Appeal, overturned the EAT judgment, see the judgment of Stanley Burnton LJ, paragraph 13. See also Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677, in which the Court of Appeal held that the tribunal is required to consider section 98(4) ERA 1996, when considering the fairness of the dismissal.[18]The level of inquiry the employer is required to conduct into the employee’s alleged misconduct will depend on the particular circumstances including the nature and gravity of the case, the state of the evidence and the potential consequences of an adverse finding to the employee. “At the one extreme there will be cases where the employee is virtually caught in the act and at the other there will be situations where the issue is one of pure inference. As the scale moves towards the latter end, so the amount of inquiry and investigation which may be required, including the questioning of the employee, is likely to increase.”, and the employee must be given “a full and fair opportunity to engage with any new material which might emerge…”, Wood J, President of the EAT, ILEA v Gravett [1988] IRLR 497.[19]Harassment is defined in section 26 EqA, which states: “26 Harassment (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating and intimidating, hostile, degrading, humiliating or offensive environment for B”[20]In deciding whether the conduct has the particular effect, regard must be had to the perception of B; other circumstances of the case; and whether it is reasonable for the conduct to have that effect, section 26(4).[21]In this regard guidance has been given by Underhill P, as he then was, in case of Richmond Pharmacology v Dhaliwal [2009] ICR 724, set out the approach to adopt when considering a harassment claim although it was with reference to section 3A(1) Race Relations Act 1976. The EAT held that the claimant had to show that:(1) the respondent had engaged in unwanted conduct;(2) the conduct had the purpose or effect of violating his or her dignity or of creating an adverse environment;(3) the conduct was on one of the prohibited grounds;(4) a respondent might be liable on the basis that the effect of his conduct had produced the proscribed consequences even if that was not his purpose, however, the respondent should not be held liable merely because his conduct had the effect of producing a proscribed consequence, unless it was also reasonable, adopting an objective test, for that consequence to have occurred; and(5) it was for the tribunal to make a factual assessment, having regard to all the relevant circumstances, including the context of the conduct in question, as to whether it was reasonable for the claimant to have felt that their dignity had been violated, or an adverse environment created.[22]Whether the conduct relates to the protected characteristic “will require consideration of the mental processes of the putative harasser”, Underhill LJ, GMB v Henderson [2016] EWCA Civ 1049. This appears to have been widened in the case of Carozzi v University of Hertfordshire and others [2024] EAT 169, a judgment of HHJ Tayler, who held: “There is no requirement for a mental element equivalent to that in a claim for direct discrimination for the conduct to be related to a protected characteristic. Treatment may be related to a protected characteristic where it is “because of” the protected characteristic, but that is not the only way conduct can be related to a protected characteristic, and there may be circumstances in which harassment occurs where the protected characteristic did not motivate the harasser.”, paragraph 24.
The evidence
[23]The claimant gave evidence and did not call any witnesses. On behalf of the respondent, the following witnesses were called:(i) Ms Sabine Mai, Service Manager for Adults and Older People, at the time;(ii) Ms Victoria Main, Head of Integrated Learning Disabilities; Service Director of Integrated Learning Disabilities and Mental Health;(iii) Ms Bibi Codabaccus, Operations Manager;(iv) Ms Duduzile Sher Arami, Director of Public Health; and(v) Mr Jon Newton, Service Director of Adults and Older People.[24]In addition to the oral evidence the parties produced the joint bundle of documents comprising of 1,164 pages. References will be made to the documents as numbered in the bundle.
Findings of fact
[25]This case is about the claimant’s dismissal; her relationship with her second line manager; her belief that she had been unfairly dismissed, and the victim of racial harassment. In this judgment we first make findings in relation to her dismissal, followed by our findings in relation to her harassment related to race claim. Finally, we set out our conclusions in relation to both claims.[26]The respondent is a London local authority. Bridgewood House is owned and managed by Enfield Council. It comprises of units providing nursing and residential care. The residential units are on the ground floor. The nursing units are on the upper floor. At all material times there were six named units: Jubilee, Broomfield, residential units situated on the ground floor. Albany is on the first floor and is a learning disability unit. Pymmes is situated also on the first floor and is a nursing unit. Whitewebb and Trent units are situated on the second floor which are residential units.[27]The claimant, a Black Caribbean, was originally employed by Independence and Wellbeing Limited from 16 September 2019, a former trading company of London Borough of Enfield. On 1 February 2020, she was appointed to the post of Senior Staff Nurse. Staff employed by Independence and Wellbeing Limited were transferred over to the respondent on 1 June 2020. The claimant, therefore, had continuous employment from 16 September 2019.[28]At all material times she worked at Bridgewood House. Her immediate line manager was Mr Sol Uy, Deputy Operations Manager. His manager was Ms Bibi Codabaccus, Operations Manager.[29]Ms Codabaccus had been employed by the respondent since December 2019. She is the Registered Manager at Bridgewood House. For Care Quality Commission purposes, as the Registered Manager, she is responsible for: the regulated activities at the home which can accommodate 70 residents; the standards of care and support provided at the home; and ensuring that day-to-day regulated activities are completed to a good standard. This involves completing, or ensuring others complete, audits of work carried out, maintain records and that the home meets the 34 CQC standards, otherwise known as Quality Statements. In addition, she is responsible for finance, human resources, and sickness monitoring, amongst others. Within the home she is responsible for around 100 staff, ranging from domestic and kitchen staff, to carers, managers and nurses. She directly supervises and manages five staff including two Deputy Managers. Her relationship with the claimant had been strained during the claimant’s employment and this featured in the case against the respondent. The incident on 23 June 2022[30]The claimant was on duty during the evening of 22 June 2022 and was the most senior nurse in charge. What happened that evening, which is of importance to this case, is recorded by Ms Sofia Khatun, Support Worker, in an email dated 23 June 2022, and sent to Ms Codabaccus. The subject line was “ID EOL Medication administration”, classification was “Official” “Dear Bibi Last night at roughly 20:00 to 20:30 xx [blanked out] daughter xx said that xx look like she was in more pain than before and she may need another injectable - I looked at Irene and her breathing was more louder and laboured than it had been during the shift. I went and informed team leader SG who told me to tell nurse Julia upstairs. I went to Pymmes and Julia was sitting in the dining room so I explained to her please could you come and administer the EOL medication for Irene – she said the other day she had changed Irene’s dressing as it was offensive smelling and she was not going to administer the medication - I should tell SG to do it or Elaine when she comes in. I said they don’t give injections so she said I should call Bibi to come and do it. I went downstairs to tell SG what was said to me and saw xx had just come in. I then called District Nurses out of hours service and was on hold for a good while before I got through to them and they said someone will be coming but did not give any specific time. I apologised to xx for the delay and said that our nurse was busy but D/N will be coming. She said she will stay until they come. Thank you Sofia Khatun” (page 526 of the joint bundle)[31]The end-of-life patient in this case has been referred to as “ID”.[32]“SG” is Ms Suzie Grant, Team Leader.[33]The District Nursing Team are based off-site and deal with priorities and patients in their district. They attended to ID at or around 22.33 hours that night and administered an injection to her at 22.44 hours, according to the medication records. Sadly, ID passed away about 40 minutes after receiving her pain medication. Her daughter was with her at the time. Suspension of the claimant[34]The decision to suspend the claimant was taken by Mr Bindi Nagra, Director of Health and Adult Social Care, and this was confirmed in a letter sent to the claimant, dated 24 June 2022. He informed her that the reason for her suspension was to protect her interests and those of the Council while an investigation was undertaken in relation to an allegation. The allegation being that, “On 22 June 2022 you refused to give the necessary end of life medication to a vulnerable adult at the end stages of life which left the resident in pain and distress.” (523-525)[35]The claimant did not tell Ms Khatun that, professionally, as she did not have the necessary training, she was unable to administer medication to an endof-life patient.[36]Mr Jon Newton, Service Director of Adults and Older People, who is responsible for Bridgewood House and its staff, and is the Nominated Officer for Care Quality Commission purposes, became aware of the incident on 22 June 2022 when Ms Codabaccus informed him about it. He then had a discussion with someone in human resources, after which he spoke to Mr Nagra who took the decision to suspend the claimant which was communicated to her orally by Ms Codabaccus in the presence of Ms Natalie Wood, Team Leader, on 23 June 2022, and later in writing by Mr Nagra the following day. (523-525, 527)[37]Mr Newton instructed Ms Sabine Mai, Service Manager for Adults and Older People and a Registered Occupational Therapist, to conduct an investigation into the incident on 22 June 2022.[38]Ms Mai had not met nor had she any knowledge of the claimant before the investigation. In her letter dated 13 July 2022, she invited the claimant to an investigation meeting on 20 July 2022 and allowed her to have someone accompany her. The claimant was informed that it was not a disciplinary hearing but was to: “…investigate into the allegation that on 22 of June 2022 you have refused to administer an injection (pain medication) to a patient on the end of life pathway.” (181-182)[39]The claimant duly attended with Mr Farie David Chimhini, and was represented by Ms Mary Arnold, from the Royal College of Nursing. Notes were taken. The claimant denied that it took 2 hours 10 minutes for the District Nurses to arrive at Bridgewood House to attend to ID. She said that ID passed away at 11.13pm and the District Nurse arrived at 9pm, or just after. She stated there were 65 service users at Bridgewood House that evening and that she was the only nurse on duty, and that ID was under the care of the District Nurse and the Palliative Nurse. She went on to say that she had not administered injectables to any residents and that her insurance policy did not cover her carrying out that task; she could not administer pain relief medication as ID already had 3 pain relief injections in the previous 24 hours, therefore, the District Nurse would have to attend to set up a syringe drive as she was not trained to carry out that work; that she had administered only insulin injection, not pain relief injection, in the past at Bridgewood House; she was responsible only for the 12 residents on the nursing unit; she had the right to refuse a task if she felt insufficiently trained to carry it out; she was very busy that evening because, at the time, she was waiting for two ambulances to arrive to take two residents to hospital; and when Ms Khatun spoke to her she was giving medication. She emphasised to Ms Mai that she was neither trained, nor was she competent to give end-of-life medication.[40]Ms Mai put to the claimant that from the medication records and the cctv footage, it took 2 hours 10 minutes for the District Nurses to arrive, who arrived at 10.32pm and administered an injection at 10.41pm. The claimant disagreed saying that the District Nurse arrived shortly after 9pm and ID had passed away at 11.13pm.[41]The claimant was asked by Ms Mai why she did not carry out an assessment on ID in her capacity as a nurse, to which she replied that she was not told until when she was suspended, that ID was in pain and distress. She had, however, called a Support Worker later that evening to find out about ID’s condition and was told that she had passed away.[42]Ms Mai noted that there was one pain injection medication given within 24 hours before 8.30pm on 22 June 2022. It was given at 8.30am on 22 June by a nurse at Bridgewood House, not by a District Nurse. On previous days other nurses at Bridgwood House administered pain relief medication to ID.[43]From viewing the cctv footage between 7pm-10.30pm, on 22 June 2022, Ms Mai observed that the claimant was dispensing medication to residents from 7.15pm-8.00pm, followed by her completing the MARS medical records sheets in the dining room until 8.40pm. She was spoken to by Ms Khatun at 8.30pm. After speaking to the claimant, Ms Khatun then left the room. At 8.40pm, the claimant went to the nurses’ station on the first floor, left there after about 4 minutes to go to the second floor. From 8.40pm-10.30pm she spent most of that time at the desk in the nurses’ station. She was observed making video calls which added up to 25 minutes in total.[44]Ms Mai interviewed Ms Khatun who gave an account consistent with the email she sent to Ms Codabaccus on 23 June 2022. In addition, she said that between 8.00pm-8.30pm, ID’s daughter spoke to her saying that ID was not feeling well and that her breathing was laboured. She spoke to Ms Grant, Team Leader, saying that ID would need an injectable pain relief medication. Ms Grant instructed her to speak to the claimant who was upstairs in the Pymmes dining room. Ms Kahatun then said to Ms Mai the following: “Julia [the claimant] sat there at the corner table, she turned to me. I said that I think ID needs an injectable. Julia said, I cleaned her dressing yesterday and won’t go downstairs again, I am not doing it, Suzie needs to do it. Or Elaine. I said that they don’t do injections, Julia responded: then call Bibi (Ms Codabaccus) to do it….” (116)[45]Ms Mai prepared a report. There was a male person, Mr Abdul Momit, in the room at the time the claimant was there but who was not interviewed by Ms Mai as she had been informed that he did not want to get involved. In his email dated 24 June 2022, Mr Momit wrote that he did not witness anything of significance that evening. (941)[46]In her report dated August 2022, Ms Mai referred to the Standard and Proficiency for registered nurses document applicable to the claimant, in that, nurses are required to “assess and respond appropriately to uncontrolled symptoms and signs of distress including pain, nausea, thirst, constipation, restlessness, agitation, anxiety and depression”, paragraph 10.1.[47]She concluded that there was a case to answer and recommended that the matter proceed to a disciplinary hearing in relation to breaches of the respondent’s Employee Code of Conduct, in particular: i. Failure to observe as outlined in the claimant’s job description (misconduct); ii. Refusal to carry out a reasonable request, nursing duties to an end-of-life patient in Bridgewood house when requested to do so. (138-270) The disciplinary hearing[48]In a letter from Ms Mai to the claimant dated 14 September 2022, she invited the claimant to attend a disciplinary hearing on 28 September 2022, at 2pm, at the Civic Centre. The allegation being: “..on 22 of June 2022 you have refused to administer an injection (pain medication) to a patient on the end of life pathway in Bridgewood House.”[49]The Chair of the hearing would be Ms Vicky Main, Head of Integrated Learning Disabilities; Service Director of Integrated Learning Disabilities and Mental Health. Ms Mai would be presenting the evidence and the respondent’s case. The claimant was informed of her right to be accompanied and to call evidence whether written or oral. If she intended to call witnesses, she had to let Ms Mai know 4 days before the hearing. The evidence Ms Mai would be presenting at the hearing was attached with the letter. (231-232)[50]In the respondent’s disciplinary policy, non-exhaustive examples of misconduct includes, “refusal or failure to carry out a reasonable instruction.” Examples of gross misconduct includes, “serious breach of trust and confidence.”(81-82)[51]The hearing was rearranged for 5 October 2022, from 28 September 2022, as the claimant wanted to know the outcome of her second grievance prior to proceeding with the disciplinary hearing. She attended with Mr Chimhini. Ms Main was advised by Ms Vicky Tozer, Employee Relations Advisor. Notes were taken by Ms Katerina Stoyanova, Employee Relations Advisor. The hearing lasted half-a-day and was adjourned to 19 October 2022 for one day.[52]During the hearings Ms Mai gave an account of how she conducted her investigation and her findings. Four witnesses were called by the claimant: Ms Khatun; Mr Sol Uy; Ms Peta-Gay Lindsay, Support Worker; and Ms Codabaccus. The claimant produced an 11-page statement of her case in which she stated, among other things, that if the claimant had left her nursing unit to attend to ID, she would have been accountable for putting her residents at risk. She also made numerous references to case law. (925-935)[53]Ms Mai said that even if the claimant was not trained in carrying out pain relief injections, as a nurse, it was expected that she would have at least gone down to check on ID herself to see whether there was anything she could have done to alleviate her pain but failed to do so. As she did not do what was asked of her, this could be interpreted as a refusal. The other person in the room with the claimant at the time the request from Ms Khatun was made to the claimant, was Mr Momit who did not want to be interviewed as part of the investigation.[54]Mr Chimhini questioned whether the claimant had “refused” to carry out pain injection. Ms Mai agreed but said that the claimant’s conduct could be interpreted as a refusal as she did not attend to ID.[55]The claimant gave an account consistent with she told Ms Mai during the investigation, maintaining that she was not trained and not insured to carry out pain relief medication injections, therefore, she could not carry out tasks beyond her competency. She said that during the evening in question, there were two other members of staff on duty. At the time Ms Khatun spoke to her she was in the lounge updating the MAR charts, actively giving medication, and waiting for two ambulances to arrive. The advice she gave to Ms Khatun was reasonable as Ms Grant, Team Leader, was her “next port of call.”. She advised her to call Mr Uy and Ms Codabaccus, as well as the District Nurses, as she, the claimant, was unable to go downstairs at the time.[56]The claimant was asked by Ms Main whether she should have gone down to see ID, but Mr Chimhini interrupted and answered the question by saying that if the claimant was not trained, she ought not to have seen ID.[57]Mr Uy, the claimant’s line manager, was then questioned. He said that he spoke to Ms Mai in July 2022 about “minutes and training”. He was aware the District Nurses were involved in ID’s care and that if there was an escalation plan, he expected his team to follow it. He confirmed that their recommendations stated that a syringe driver had to be applied after 2 injections had been administered with 24 hours. Ms Mai intervened to explain that she met with Mr Uy in order to understand the layout of Bridgewood House, and for him to explain the cctv footage.[58]Ms Peta-Gay Lindsay, Support Worker, was also questioned. She said that she worked in the Learning Disability park and had dealings with District Nurses. If there was an incident involving a resident who was under the care of the District Nurses, and who needed support, she would refer the matter to the District Nurses. If there was a plan devised by the District Nurses for a resident, it would be displayed in the resident’s room, or in the District Nurse’s paperwork, and “on our device.” They would also email staff any recommendations.[59]Ms Khatun was also called and questioned. She confirmed that she met with Ms Mai and notes were taken but could not recall whether she had signed them. She said that her Team Leader had asked her to call Ms Codabaccus to make her aware of the incident involving ID, but she was not in the building at the time on 22 June 2022, so she sent a short email to her. She saw Ms Codabaccus the following morning, 23 June, when she finished her shift, and Ms Codabaccus was about to start her shift. Ms Codabaccus wanted to know what happened and asked her to write an email. What was in the diary was similar to what was in the email. The email was a more official account of what happened. She said that she was aware of the District Nurses’ recommendations in relation to end-of-life medication and what to do should ID become symptomatic. However, as a first step, and as the claimant was the Registered Nurse, it made more sense to approach her first, which was suggested by her Team Leader. Ms Khatun then said that, as she had been working for a long time at Bridgewood House, she could tell when a person’s condition had deteriorated. ID’s “breathing was getting more and more laboured etc”.[60]It was put by Mr Chimhini to the witnesses during his questioning of them, amongst other things, that Mr Uy and Ms Codabaccus met with Ms Mai after the claimant had raised a grievance; the District Nurses and the doctors were not asked to provide witness statements; there was no record of the person in the room at the time with the claimant having refused to participate in Ms Mai’s investigation; that ID was under the care of the District Nurses; she had also received injectable medication on 20 June 2022; and the District Nurses’ recommendations and escalation plan for ID were not disseminated to staff.[61]Ms Main, during the hearing, took into account the claimant’s job description as Senior Staff Nurse, “to assess, plan, implement and evaluate resident care,…demonstrate specialist skills and knowledge both through training and in clinical, leadership and management development, work as an excellent role model for professional practice.”. She also took into account the information given by Ms Lucy Ntorinkansah, the Nurse Education and Professional Standards Lead, Barnet, Enfield and Haringey, Mental Health NHS Trust, who wrote in response to questions asked, that: “Under the NMC Code (2015), nurses are expected to prescribe or administer medicine in accordance with the limits of their training, the law and in accordance with any local or national policies and guidance…..” (836-837)[62]In Ms Main’s follow up question to Ms Ntorinkansah on 19 October 2022, she asked: “If the nurse didn’t feel confident to administer meds, what would you expect the nurse to do as a minimum in response to the request from a junior, unqualified member of the team? Am I right in that, as a minimum, the nurse would assess the situation then advise on best course of action?”[63]The answer came from Ms Clare Scott, BEH Mental Health NHS Trust, because Ms Ntorinkansah was on leave at the time. Ms Scott wrote: “2. If the registrant didn’t feel competent/wasn’t trained to administer, they would be expected to assess the patient, review care plan and prescription chart to identify whether alternative medication that they could administer was prescribed. Where they were still unable to administer, they would be expected to ask for help/seek advice from suitably experienced and qualified professional.” (913)[64]The cctv footage was viewed at the disciplinary hearing.[65]Mr Chimhini and Ms Mai, at the conclusion of the evidence, were allowed to summarise their case. Ms Main then informed those present that she would take time to go through the “huge amounts of information” before coming to a decision and could not do it within 7 days as she would be taking a few days’ leave during that time. Mr Chimhini had no objections save to request that they be updated. (233-253)[66]In evidence Ms Main said that she was in no way reassured that the claimant would not act in the same way in similar circumstances in the future, and did not reflect upon her actions. There was no compassion and no support. She felt there was a complete loss of trust and confidence. With reference to the events on 22 June 2022, Ms Main said that she, Ms Main, was in error as there were 2 previous injections within the previous 24 hours. (910-912) The dismissal of the claimant[67]In her outcome letter dated 8 November 2022, sent to the claimant, Ms Main, gave her reasons for dismissing her, and in doing so, she considered what Mr Chimhini submitted. Firstly, he said that the investigation was flawed, but Ms Main found that it was fair and thorough. Ms Mai interviewed relevant witnesses. The male member of staff in the room with the claimant at the time, Mr Momit, was approached but declined to be a witness. Ms Mai interviewed the main witness, Ms Khatun, and sought assistance from Mr Uy in getting access to the cctv footage and in understanding the layout of the building. Ms Codabaccus was not involved in the investigation process. Her role as Registered Manager, was to escalate Ms Khatun’s report of the incident on 22 June 2022.[68]In relation to the claim by Mr Chimhini that human resources had an influence in the investigation, Ms Main saw no evidence in support of that contention. She found that it was Mr Newton, in his capacity as Head of Older People and Physical Disabilities Service, who instructed Ms Mai to undertake the investigation. Based on her findings, he decided that there was a case to answer and that disciplinary proceedings should be invoked.[69]In relation to Mr Chimhini’s submission that the Care Act 2024 states that it is unlawful for social care to provide health care and would be unlawful for the claimant to give health-based needs care, Ms Main disagreed. She concluded that Bridgewood House is owned by the respondent Council, and is registered as an independent service, regulated by the Care Quality Commission to provide residential as well as nursing care.[70]Ms Main was concerned that the claimant had not maintained competency training in pain relief injection medication as a Registered Nurse. She had, however, provided nursing care in the days before the 22 June 2022, when she changed ID’s bandage.[71]What was of concern to Ms Main was that the claimant confirmed that she would respond in the same way should a similar situation occur. She then wrote the following: “At the hearing, I referred to your current Job Description, post title: Senior Staff Nurse. Your Job Description requires you to ‘demonstrate expert ability to assess, plan, implement and evaluate resident care, guiding more junior staff to deliver person centred care’ and ‘demonstrate specialist skills and professional knowledge both through training and in clinical, leadership and management development. Work as an excellent role model for professional practice.’ I found your response to a junior member of the staff team, Sofia, on the evening of 22 June 2022, coupled with the lack of care and compassion for the resident, Ms ID, fell significantly below the standards and expectations of Enfield Council in relation to your job role, and those as set out in line with the NMC’s code of professional conduct. You did not place the resident, Ms ID, at the centre of your decision making. You are a Senior Nurse at Bridgewood and the most senior qualified member of staff on duty (a registered nurse) and made no attempt at any time during your shift to assess the resident at the end of her life, provide care within the limits of your training and competence, or provide leadership and support to staff who are junior to you. My decision is that you are dismissed without notice on the grounds of a loss of trust and confidence in you. Your last day of service with the Council will be on 8 November 2022. As you are a Registered Nurse, the findings of this Hearing are required to be shared with the Nursing & Midwifery Council.”[72]The claimant was advised of her right of appeal against her dismissal. (271- 275)[73]The disciplinary hearings lasted in total one and a half days and Ms Main told us that she was satisfied that both the claimant and Mr Chimhimi had said all that they wanted to say.[74]Although Ms Main stated that the claimant’s last day of work was 8 November 2022, the same date as on the letter, the effective date of dismissal would be when it was received and read, which was likely to have been the following day, 9 November 2022, Gisda CYF v Barratt [2010] IRLR 1073, a judgment of the Supreme Court.[75]In evidence Ms Main acknowledged that the disciplinary charge was the claimant’s refusal to administer injectable pain relief medication, but she had been dismissed for breach of trust and confidence because she said that she would behave the same way should a similar incident recur. The appeal[76]The respondent’s procedure on appeal is to review the “disciplinary outcome”. it does not provide for a rehearing but for the employee to set out their grounds of appeal. (93)[77]The claimant appealed against the decision to dismiss her. In a letter dated 18 November 2022, Mr Chiminhi set out her grounds of appeal. (894-903)[78]The appeal was Chaired by Ms Dudu Sher-Arami, Director of Public Health, and was held on 4 April 2023. The delay was due to the unavailability of key individuals. Also present were: Ms Flora Stevens, Human Resources; the claimant; Ms Chimhini; Ms Jane Parsley, Human Resources, who stood in for Ms Main; and Ms Stoyanova, Human Resources, took notes. (816- 835)[79]Ms Mai and Mr Newton were available as witnesses. Mr Uy and Ms Codabaccus, were not available. Ms Sher-Arami explained to the claimant and Mr Chimhini, who were concerned about their absence, that she could not force them to attend the hearing. Ms Main had submitted her written responses to the grounds of appeal which were considered by Ms SherArami. We bear in mind that the appeal is not a rehearing. (279-292)[80]Mr Chimhini explained that the grounds of appeal were based on the outcome of the disciplinary hearing, in particular, that the punishment did not fit the crime. Although the claimant was critical of how the home operated, her concerns were not relevant to the issues Ms Sher-Arami had to consider. The claimant argued that she had not received training or supervision. Ms Sher-Arami looked into this and found that the claimant had received training and supervision, but not on end-of-life or medication. Mr Chimhini asserted that the allegation the claimant had to face had changed from refusing to inject a resident at end-of-life to having failed to assess the resident. Ms Sher-Arami found that Ms Main had explored with the claimant the actions she could have taken and what she failed to do, including not assessing ID, and concluded that there was a loss of trust and confidence in her. Ms Sher-Arami noted that neither the claimant nor Mr Chimhini questioned Ms Mai. She advised that she would need time to consider the evidence and that her outcome would be in writing. She also wanted to speak to Ms Mai about the person in the room with the claimant at the time, and to Mr Uy and Ms Codabcaccus about supervision and training. In addition, she wanted to view the cctv footage.[81]After conducting a further enquiry into some outstanding issues, she wrote to the claimant on 4 May 2023 with her outcome.[82]She stated that Ms Mai had told her that the first time she became aware of a potential witness in the room with the claimant on 22 June 2022, was when she viewed the cctv footage. That person, Mr Momit, she was told, did not want to get involved. She also said that Mr Newton had no involvement in Ms Mai’s report and findings, and Ms Mai did not discuss her report with Ms Main prior to presenting it at the disciplinary hearing. Ms Mai also wanted to discuss with Ms Codabaccus the running of Bridgewood House. Although the claimant declined to view the cctv footage with her as part of the investigation, she only saw it during the disciplinary hearing.[83]Ms Sher-Arami saw no evidence that Mr Newton was involved either in the outcome of the investigation, or the disciplinary hearing. In Mr Momit’s witness statement he wrote that he did not witness anything of relevance that evening and did not want to be involved. She found that there was no evidence that not interviewing him was done intentionally by Ms Mai in order to bolster the respondent’s case, as the claimant alleged. (941)[84]Ms Sher-Arami also did not accept that Ms Clare Scott’s response was to a leading question put to her by Ms Main.[85]In relation to the assertion that the reason for the dismissal had changed, Ms Sher-Arami concluded that the reason given by Ms Main for dismissing the claimant was loss of trust and confidence and the outcome letter read, “You did not place the resident at the centre of your decision making.” It did not refer solely to the fact that the claimant did not assess ID. The claimant was asked during the investigation whether she had checked on ID. She explained why she did not. In Ms Sher-Arami’s view there was no change in the allegation.[86]As to whether dismissal was proportionate to the allegation, Ms Sher-Arami found the following: “During the interview with Sabine [Mai] you stated that at the time of the incident you were upstairs giving medication and that your insurance does not cover you to administer the injection and that this was the duty of the District Nurses. The cctv footage showed no evidence that you were busy on the other task and I have heard nothing from you about the accounts of the night other than you saying you were on the drugs round, the cctv shows that this would have finished around 8.10. The footage also showed you looking at MAR charts and these were completed around 8.45, the request from Sofia was made to you at around 8.30 so you had time to administer the injection and or to support Sofia. I saw nothing on the footage demonstrating to me that you were busy with other things and certainly nothing that couldn’t wait in order to support the resident and the junior member of staff. I have taken on board the points you raised regarding your training, however, I have seen no evidence that you requested training regarding this issue. I have seen no evidence where you told anyone you did not feel competent to give an injection until this investigation took place. You yourself said you could not have checked the MAR chart and have since carried out the end of life training needed. The purpose of your role as described in the job role profile: “To participate as a senior member of the nursing and care team in providing a high standard of nursing care to the residents of Bridgewood. The post holder will assess, plan, implement and evaluate the care needs of resident.” You also have to be a registered nurse in order to carry out the role you were employed in. I see nothing differentiating between residents and NFC in the job role profile. I believe that the original outcome was proportionate to the allegation made and it was proven. After considering the evidence I do not uphold your appeal. You have now exhausted your right of appeal under the Council’s Principles of managing disciplinary and this decision is final.” (293-301)[87]In the letter of dismissal and in the appeal outcome, no reference is made to the claimant’s length of service, her hitherto clean disciplinary record, or alternatives to dismissal as having been considered. The Nursing and Midwifery Council investigation[88]As a postscript, the case was referred to the Nursing and Midwifery Council and an investigation was conducted after the appeal which would not have been within the knowledge of the decision makers, Ms Mai, Ms Main and Ms Sher-Arami. A report was prepared by Mr Neill Allwood, Head of Case Examiners, Professional Regulation, and is dated 30 October 2024. In it, Mr Allwood concluded that the claimant, although the incident in question occurred on a night shift with the claimant being the only registered nurse on that shift and with responsibility for 65 vulnerable people, some with acute needs requiring her attention, it did not fully excuse her behaviour. Her fitness to practice was, however, found not to have been impaired.[89]In the claimant’s response to the question, in the Nurse, Midwife, Nursing Associate Context Form, dated 4 January 2023, “How could you have dealt with the situation differently?”, she wrote that she would ask a junior staff to log a call with the District Nurse; she could have assessed the dying resident; reassured the daughter of the dying resident that he District Nurses had been contacted and were on their way; and she could have assessed the resident to see if they could tolerate taking oral pain killers.[90]Mr Allwood then wrote: “Having carefully examined all of your responses it appears to us that you did not act appropriately in acting as you did, but this was because of the contextual factors set out earlier. Nevertheless, in your more recent response, you have demonstrated an understanding, of the risks in acting as you did. Considering your local responses in relation to this concern as well as your response to the NMC, we consider that you have shown sufficient insight into your errors. You have taken a step back and demonstrated how you understand how you should have acted differently in the situation. Taking account your explanations during the local investigation as well as your response to the NMC, we consider that you have shown insight into the concerns overall.” (1140=1147) Racial harassment[91]In relation to the claims of racial harassment, we will address them as set out in the List of Issues above but in chronological order. Paragraphs 3ii, 3iii, 3v, 33vii, 3viii, 3ix, and 3x are all the allegations of harassment related to race. Paragraphs 4i-4vii relates to the unfair dismissal claim.[92]Although no longer relevant as the associative disability discrimination claim was dismissed upon withdrawal, there was no dispute that the claimant’s son is living with learning difficulties and is disabled. Remarks made by Ms Codabaccus during a flash meeting saying “Let me stop you there”, and went on to belittle me in front of other colleagues when working day shifts, paragraph 3v in the List of Issues[93]The claimant asserted that Ms Codabaccus, during a flash meeting on 16 August 2021, said: “Let me just stop you there.”[94]Ms Codabaccus then went on to, allegedly, belittle the claimant in front of her colleagues. The claimant stated that the incident occurred while she was working the day shift. When it was pointed out to her, having regard to the notes of the flash meeting, that the meeting was held on 16 August 2021, when she was not on duty on that day, she later changed her account and said that the incident occurred on 17 August 2021. Ms Codabaccus in evidence denied making that statement attributed to her and said that she would not belittle anyone in front of their colleagues.[95]Given the fact that for a long time the claimant maintained that the alleged comment was made on 16 August 2021, and in the absence of a detailed account of the conversation on 17 August 2021, it is difficult for the tribunal to make a finding of fact on whether this statement was made by Ms Codabaccus. (pages 844 to 847)[96]During the claimant’s evidence she made reference to paragraph 21 of the Grounds of Complaint in which she wrote that on 16 August 2021 she had been accused by Ms Codabaccus of unsafe moving and handling techniques and for not properly assessing a resident. This was discussed during a flash meeting without Ms Codabaccus verifying the facts surrounding the incident. The claimant stated that she never apologised to her even though she made an allegation of a safeguarding nature. The claimant further stated that Ms Anna Ludwa, Team Leader, approached her while she was on duty, saying that a resident was on the floor. She and Ms Ludwa went upstairs with Ms Ludwa being ahead of her. When she arrived in the room Ms Ludwa and a Support Worker, called Tanesha, were standing over the resident, who was in bed. The claimant asked Tanesha whether she had given the resident paracetamol to which Tanesha confirmed that she had.[97]The claimant later discovered that Ms Ludwa had sent an email regarding this incident and had alleged that the claimant had lifted the resident, using the wrong moving and handling technique, and put her in bed. This was denied by the claimant who felt the email was targeting her. There was no disciplinary action taken. According to the claimant, the resident had fallen out of bed and there was a bump on her forehead. Ms Ludwa, when she was about to leave her employment with the respondent, according to the claimant, confessed that it was Ms Codabaccus who encouraged her to write the email.[98]Ms Codabaccus, in evidence, said that, following the incident, there was an email trail regarding what happened. One was saying that the resident was found on the floor and that the claimant assisted her back to bed. The other email stated that the resident was already in bed when the claimant arrived. Ms Codabaccus thought that the matter was resolved and spoke to Ms Ludwa telling her that she should make sure that she had accurate information. As there was no disciplinary action taken the claimant was informed that the matter was concluded.[99]Ms Ludwa was not called to give evidence before us in support of the claimant’s account of their conversation prior to leaving her employment with the respondent.[100]As part of allegation 3(v), the claimant further alleged that Ms Codabaccus would belittle her in front of other colleagues when she, the claimant, was working on day shifts, but precise dates were not given.[101]The claimant also stated that at the flash meeting either on 16 or 17 August 2021, Mr Stephen Lynch, Maintenance Team Leader, said to her that Ms Codabaccus had accused her of using the wrong manual and handling technique. Also, that he had witnessed Ms Codabaccus telling her during meetings, to “shut up”. Mr Lynch was not called to give evidence before us to corroborate the claimant’s account.[102]We were unable to make findings of fact in support of her assertions, namely that at a flash meeting she was told “let me just stop you there”, and to “shut up” at various meetings by Ms Codabaccus. The full contexts of the discussions were not given to us and the evidence was either lacking or conflicting. Ms Codabaccus making continuous phone calls to the claimant when the claimant was on duty during medication round, after the claimant had raised a grievance in January 2022, paragraph 3iii[103]The evidence presented in support of this allegation was also lacking. The claimant alleged that Ms Codabaccus would make comments regarding her work and would continuously call her at night. She would explain to Ms Codabaccus that she was on her medication rounds and could not talk to her. Ms Codabaccus would also wait for her to start her medication round in order to approach her to discuss what she had planned for her to do during her shifts. There was no evidence produced of continuous phone calls to her by Ms Codabaccus.[104]Ms Codabaccus said in evidence that the claimant was the most senior person on the night shift and had to supervise and support staff on duty. The claimant sent an email to her on 1 September 2021, in response to her request to help another member of staff, Ms RW, in getting clarification on her right to work in this country. The claimant’s response was, “Please can you discuss with Ruth about sharing her personal business (confidentiality) with me as I am a nurse and not the manager. Then, I would be able to proceed.” (1023)[105]Ms Codabaccus replied on 2 September 2021, stating: “[RW] has already been made aware that you will assist her with the link yesterday night as she received a phone call from Bridgewood House. Also as senior nurse, you supervised [RW] as line manager as she is always working in Albany where you are in charge every time you are on shift. There is no [breach] of confidentiality or duty of candour as we are following LBE policy.” (1023)[106]We were not shown evidence of Ms Codabaccus making frequent phone calls to the claimant while on her shift. We find that there was one instance when Ms Codabaccus called the claimant while the claimant was on her medication round but did not speak to her. Instead she left a message with Ms Ludwa, Team Leader, to complete an error form as a member of staff had failed to sign the MAR chart after administering medication. In Ms Codabaccus email to the claimant on 2 September 2021, she asked the claimant to complete the supervision and medication error form with the staff member concerned. The claimant responded by accusing Ms Codabaccus of bullying and targeting her and asked for a copy of the respondent’s grievance policy. We find that Ms Codabaccus request to the claimant was in line with the respondent’s medication policy when staff do not sign the MAR chart after administering medication. This was neither targeting nor bullying the claimant but was Ms Codabaccus following the respondent’s policy.[107]Although she was unable to recall specifically approaching the claimant during medication rounds, she said that this may have happened but not frequently.[108]We were unable to make any findings of fact that Ms Codabaccus would continuously call the claimant while the claimant was on her medication rounds. We accept that on the occasions when Ms Codabaccus did communicate with the claimant, there were perfectly good reasons for doing so.[109]Further, there was no evidence, nor do we find that Ms Codabaccus’ conduct towards the claimant was unwanted and related to race. (1037- 1038) The respondent encouraging a resident in May 2022, to make false accusation of a safeguarding nature against the claimant, paragraph 3ii[110]The claimant alleged that the respondent had encouraged a resident, AA, in May 2022, to make a false accusation of a safeguarding nature against her. This allegation arose out of a visit to Bridgewood House by Mr Newton in the company of Mr Uy, not in May 2022, as stated above, but in April 2022. They were passing the residents’ rooms when a resident, AA, invited them into his room. He raised issues about his experiences at night but did not wish to make his concerns an official complaint. The respondent’s policy is to review issues raised by the residents. The claimant was the shift leader and nurse on duty, therefore, she was in charge.[111]Mr Uy emailed her on 27 April 2022, setting out AA’s complaints. He wrote in the subject header “Nights staff complaints” and then the following:- “Dear Julia, When we were doing our rounds a resident raised a complaint regarding a shift that you were on in Pymmes Park. The allegations were: 1. The nurse on duty was very rude as she slammed the door after leaving the room. 2. Leaving medications pots with the medications without making the residents aware. 3. A member of staff was shouting on the phone and was heard by the residents. 4. Residents in the unit were asking for help and was said “shut up”. 5. Not assisting the staff when giving personal care. 6. No interaction with residents. 7. Allegations of discrimination as resident felt as staff were giggling outside his room. 8. Nurses are not offering hot drink to everyone at night. 9. Staff are not knocking on the door before entering. 10. There was also an allegation that the night staff didn’t assist resident to a standard. Is it possible to know what are your thought on these issues. I was shocked to hear these.” (788)[112]The claimant responded the same day by email to Mr Uy, copying Mr Newton. She queried whether the complaints were directed at her and invited them to give time and dates when the alleged incidents occurred. She stated that the door could not be slammed as they have a time or delayed locking system and that all medications are administered with the service user’s knowledge. She would assist in personal care at all times unless she was busy. Assistance would be called and from other units, if help was required. She would interact with the service users every night, especially those who lacked capacity and would offer snacks, yogurt and juices. Staff were employed to care for residents with complex needs and she invited Mr Uy and Mr Newton to explain allegation 5. The three doors at Pymmes were locked at night. She witnessed staff knocking at all times before entering a room. In relation to number 8, she invited Mr Uy and Mr Newton to confirm the resident in order for her to check their “dependency tool”. In relation to the final matter, she asked what standard did the night staff fail to meet. She then concluded by writing: “I personally feel like this is another way of targeting me because I raised a grievance six months ago and Bridgewood House has not resolved it. If a service user have an issue with any member of staff this needs to be resolved. I await your next step, as I would like to have a meeting with you and my union.” (787)[113]Mr Newton emailed Mr Uy, Ms Codabaccus and Ms Parsley, the following day. He wrote: “Hi both, Obviously a difficult one! Jane, I also heard the resident’s complaint and while not all directed at Julia, the ones that were may have been made by another resident a while ago. I will write to KM regarding the other matter, just as an update but grateful if you support Sol with his one (you probably already are). (787)[114]Mr Uy emailed the claimant on 29 April 2022, stating: “Hello Julia, Apologies if you feel that way. As part as Enfield Council we value the relation between ourselves and members of the public. We investigate every small allegations that were made. I do believe that the allegations were quite serious and needed to be looked into. Yes the allegations that were made were directed at your night shift. The resident was not able to recall he exact date it was a few weeks ago and was saying that you were the one on shift on some specific events. I did my investigation and the following are to be actioned. I have also spoken with the resident involved and he was happy for me to close the case. I did check the door and it did slam very loudly when you are inside. When you are outside it did not slam as loud. Standards that were not met was when AA was not left comfortable (feeling unclean). I spoke to the resident was not able to express himself that he was not comfortable enough as he was too shy to ask or say. I have also spoken with the resident that it would be also best that if he still feels uncomfortable that it would be beneficial for him as well to express himself. I continued conversing with AA and a nurse kept saying “busy busy busy” when asked how was her day. As this may normal for us staff to talk to each other like this, I would like to take this opportunity to say unless you feel that they would understand this saying, it would be best that we refrain from using this phrase. This may come across to some service users as they may be a burden if they ask for more from us. This may be the reason why AA didn’t express himself when he was uncomfortable. I spoke with one of the resident and there are a few staff that just open the door. I can say that this may be added to the supervision especially if someone has hearing difficulties. Knocking on the door a few times and calling his name would be best practice, as this is regularly done when entering someone’s private room. I have checked some cameras and some staff just walk in. I believe we would need to address this issue. We have training regarding these issues next month. This will be beneficial for all, just to be on top of how to maintain dignity in care. I would need you to ask about the incident in regards to AA being uncomfortable, we need to learn from this experience if needed. Can you investigate on what happened? The date was 20.04.2022. Staff is Eunice and Bola, this will speed up the process. I would like to know what happened and how they left after their personal care. If there are any other concerns they can call me on Monday or provide me a statement.” (112)[115]We find that the claimant did not carry out an investigation into the conduct of her staff in relation to the concerns raised by AA despite the fact that she was instructed by her manager to do so.[116]We further find that, as a policy, if issues raised are of a safeguarding nature, it does not always matter whether a resident wished them to be investigated or not. If they are of a nature that may affect others, then such matters would be investigated regardless. Having looked at the allegations, Mr Newton took the view that they were more about poor practice and civility as opposed to safeguarding issues, such as, not knocking on doors before entering, keeping voices down, and cleaning a person more thoroughly. AA was not encouraged by either Mr Uy or Mr Newton, to make a false allegation of a safeguarding nature against the claimant. There was no evidence to support such an allegation. The claimant was the senior nurse on duty who was responsible for how staff conducted themselves. The concerns raised were not in the nature of a formal complaint but involved staff and the claimant and were about poor practice and civility. The conduct of both Mr Uy and Mr Newton was not unwanted and was not related to race but was following the respondent’s reporting practice. The respondent suspending the claimant on 22 June 2022, paragraph 3viii[117]As found earlier in this judgment, the claimant was told by Ms Codabaccus on 23 June 2022, that she was suspended. This was confirmed by Mr Newton on 23 June 2022 attaching the confirmation of suspension letter from Mr Bindi Nagra, Director of Health and Adult Social Care. She was suspended on full pay. (523-525)[118]The reason for her suspension was the incident on 22 June 2022 and the allegation that, “On 22 June 2022 she refused to give the necessary end of life medication to a vulnerable adult at the end stages of life which left the resident in pain and distress.” (523-525)[119]Although the claimant queried how it came about that she was suspended, the evidence was clear that the respondent’s managers treated the concerns raised by Ms Khatun seriously. Had the behaviour concerned a white or Asian senior nurse on duty, the matter would have led to that person’s suspension. The claimant’s suspension was not unwanted conduct nor was it related to race. The respondent ignoring or failing to fully investigate the claimant’s grievances raised on 29 August 2022 and on 12 September 2022, paragraph 3vii[120]On 13 October 2021, Medigold Health, the respondent’s Occupational Health adviser, recommended mediation between the claimant and management as well as conducting a stress risk assessment on her. The claimant had complained about feeling bullied, targeted, and victimised. She stated to the Advisor that she had been treated unfairly and differently by her peers. The Advisor noted that she developed “low mood, sleep disturbance and some cognitive issues.” (1111)[121]In an email from Mr Uy, dated 22 October 2021, he wrote to the claimant after meeting with her to discuss her concerns, that from that day he would take over her supervision. (1131-1132)[122]On 20 October 2021, the claimant completed a Harassment and Bullying complaints form. She stated that she believed that she had been harassed because of her race and personal characteristics, and was bullied. She wrote that she wanted to raise a formal grievance under the respondent’s Harassment and Bullying Grievance procedure. (723)[123]She met with Mr Jon Newton, Service Director of Adults and Older People, on 15 November 2021. This resulted in her clarifying three areas of concern in her later email dated 23 December 2021, sent to Mr Newton, Mr Uy and Jane Parsley, Human Resources. In it she wrote that her first concern was information being disclosed to Ms Codabaccus back in 2020, regarding her son living with special educational needs. She was advised by a Social Worker to work night shifts to enable her to stay at home with her son during the day. Later, staff were asking her about her son’s special educational needs which the claimant alleged she only discussed with Ms Codabaccus, and was frustrated at this apparent breach of confidentiality.[124]A second concern was that she applied for a Best Interest Assessor qualification that was available to staff, but was later told that she was not qualified to join in the training. She also felt training generally was insufficient.[125]Her third concern was in relation to events on 17 August 2021, regarding the fall incident concerning the resident referred to earlier. She was alleged to have assessed the resident before transferring her to her bed. She stated that she was only present when the resident was already in bed, not on the floor. She wrote that emails were available in support of her case. (721- 722)[126]She was informed by Mr Newton in an email dated 10 June 2022, that her grievances would be investigated by Ms Victoria Main, Head of Learning Disability Service. (721)[127]In Ms Main’s grievance investigation report, dated 6 April 2022, grievances 2 and 3 were not upheld. However, grievance 1 was upheld. She wrote: “Bibi should ensure she holds conversations of a confidential nature in private areas to ensure confidentiality for individual members of staff.”[128]Ms Main noted, in the final two paragraphs of her report, the following: “Generally: There is no identified Clinical Lead at Bridgewood House which the Senior Nurses feel impacts on the daily decision making and development of the nursing staff. The Clinical Lead and/or updated training for the Deputy Manager who is already a trained nurse, may go some way to support the current poor relationships, increase confidence, ensure nursing staff are supported and their professional development needs are progressed appropriately. The communication between Julia and Bibi is very poor, reflecting a difficult relationship between them. Clarifications of roles, responsibilities and expectations may go some way to addressing this. Both parties are willing and keen to improve their working relationship, it should be addressed as soon as possible to avoid further deterioration.” (725 – 735)[129]Mr Newton wrote to the claimant on 27 May 2022, apologising for the length of time it had taken for the grievance outcome. He stated that in relation to the grievance that was upheld, he had spoken to Ms Codabaccus, formally, on 13 May 2022, who needed to ensure that conversations of a confidential nature occur in private areas to maintain confidentiality for individual members of staff. In relation to the fall of the resident, Mr Newton wrote that Ms Codabaccus was not involved other than to receive an email from the Team Leader. He and Ms Codabaccus recognised that the claimant was not involved in the incident other than to check over the resident who was back in bed. The Team Leader was no longer employed by the Council, and had asked Mr Uy and the Nurse Manager from the Learning Disability Team, to discuss peer support to nurses at Bridgewood. (736-737)[130]The claimant’s grievance sent on 29 August 2022, was sent to Mr Newton, in which she alleged that she had been victimised and accused the respondent of breaching the implied term of mutual trust and confidence as it had acted in a manner that destroyed, or seriously damaged, trust and confidence. She stated that she was suspended from work on 23 June 2022 and that the allegations against her based on her being victimised because she had recently submitted a grievance against Ms Codabaccus, was upheld. She was now feeling in a low mood borne out of the pressures following her treatment by the respondent. How she was feeling affected her abilities and capabilities to undertake her day-to-day activities. She further claimed that she had been unlawfully harassed by the council through Ms Codabaccus contrary to the provisions in the Equality Act. The harassment was because of her race and disability and the respondent had systematically failed to champion policies and procedures to eradicate and eliminate a culture of bullying and harassment in the claimant’s workplace. (743)[131]There was an informal meeting between Mr Newton and the claimant on 6 September 2022. Notes were taken. The claimant said that she had requested a supervision meeting with Mr Uy but it never took place. She said that she was suspended for something she was never trained to do, that being administering an injection to resident ID. She alleged that the Council had allowed Ms Codabaccus to bully, harass and victimise her. Mr Chimhini, who was present at the meeting, said that the claimant’s frustration stemmed from the length of her suspension. She was asked what she wanted from the grievance process, to which she responded by saying that she wanted to be treated fairly. Mediation was previously canvassed as a way forward, but it did not take place. The claimant gave examples of times when she worked in other parts of the building and did not administer an injection because she was not trained to do it. It was explained to her that her suspension was not Ms Codabaccus’ decision, therefore, Ms Codabaccus had not victimised her. Mr Chimhini said that the delay since the date of suspension was part of the claimant’s grievance.[132]Mr Newton agreed to respond in writing to the claimant by 12 September 2022 explaining the next steps regarding her suspension. In response to a question as to what training the claimant wanted, she said that she provided a list to Mr Uy previously. She repeated that she was only suspended for not being trained to administer the injection to resident ID. Her response to the question put to her by Mr Newton in relation to desired outcomes, said that she wanted to be “treated equally, training put in place for all and communication, supervision and consistent management.” (751-753)[133]Mr Newton invited the claimant in his email to her dated 16 September 2022, to state whether she would like her grievance to be dealt with formally. (509)[134]Following a discussion between her and Mr Chimhini, they decided to proceed formally with the grievance process, and in his email to Mr Newton dated 27 September 2022, Mr Chimhini asked whether the grievance would be completed if the claimant was dismissed. (633)[135]On 29 September 2022, Mr Chimhini emailed Mr Newton in response to Mr Newton’s email dated 26 September, asking whether there was anything the claimant wanted dealt with formally other than the length of the investigation. He asked Mr Newton to “look into the length of time it took to carry out her suspension and the thoroughness and fairness of the investigation, key witnesses were not interviewed judging by evidence submitted.” (632-633)[136]In Mr Newton’s grievance outcome letter dated 4 October 2022, and not 24 June 2022, in response to the claimant’s grievance dated 29 August 2022, he attached a timeline. He stated that the claimant expressed the wish that he should review the time it took to complete the management investigation. The claimant was concerned that she had been on suspension since 23 June 2022. He produced the timeline of events prepared by Ms Sabine Mai who conducted the investigation into the allegation pertaining to the events on 22 June 2022. Mr Newton wrote that, overall, he was satisfied that the investigation was completed in a relatively timely manner, although there were occasions when there was a lag in the timings. He also wrote that there was a short delay due to his error in not escalating the request to investigate to a more senior human resources person when Adult Social Care’s Human Resources Advisor was off work, and he apologised for this. He then wrote: “However, in general I regard these as unfortunate delays rather than deliberate ones. In this view I take into consideration that the investigation occurred over the summer, with annual leave being taken. In addition, individual’s sick leave and the need to re-review CCTV footage added to the delay. If you are not satisfied with my decision you have the right to appeal against it by writing to Bindi Nagra…” (747-748)[137]The investigation timeline produced by Ms Mai starts with the claimant’s suspension on 23 June 2022. On 4 July 2022, an email from Human Resources was sent to Ms Mai asking her to commence the investigation. Prior to that date time was taken up in identifying a suitable investigator. On 11 July 2022, an introductory email was sent to the claimant suggesting an interview date on Wednesday 20 July. The claimant responded on 11 July confirming her attendance. On 20 July she was interviewed and was represented by Mr Chimhini. There were conversations on 20 July with Mr Uy and Ms Sofia Khatun, Support Worker. On 27 July, the transcript of the interview with the claimant was sent to her for her approval. On the same day there was an investigation to clarify matters with Mr Uy and the first viewing of the CCTV footage. On 1 August 2022, the claimant responded to the transcript of her interview. On 18 August 2022, there was a conversation as part of the investigation with Ms Codabaccus. She was on leave from 1 July and did not return to work until 3 August following a period of ill-health. Mr Newton was away from 1 August to 15 August, and Ms Mai was covering for him form 8 to 12 August 2022. These factors contributed to the delay. Then on 25 August 2022, there were discussions with Mr Newton resulting in an agreement to meet on 30 August. There was also a discussion with Human Resources regarding the report and appendices. On 30 August Ms Mai met with Mr Newton, and they agreed to review the whole length of the cctv footage as Mr Newton asked questions about it. On 1 September 2022, there was a final review of the cctv footage at Bridgewood House. On 5 September 2022, the final version of the report together with appendices were sent to Mr Newton and Human Resources. Mr Newton emailed Ms Mai the following day acknowledging receipt of her report. On 12 September 2022, he asked Human Resources to arrange a disciplinary hearing. (749-750)[138]In relation to the allegation that the respondent ignored or failed to fully investigate the grievance dated 29 August 2022, we find that the grievance was not ignored. It was explored by Mr Newton informally. During the informal meeting the claimant stated she wanted to be treated fairly and requested that the grievance move to the formal stage. The delay in dealing the investigation from suspension was explained by Mr Newton and contained in the timeline of events. It was not fully investigated because after the 4 October 2022, when the claimant received Mr Newton’s outcome letter, matters were taken up by the disciplinary process, leading to the claimant’s eventual dismissal on 8 November 2022. Accordingly, as the respondent did not fully investigate the claimant’s grievance following her statement that she wanted the matter to be proceeded with formally, the disciplinary process intervened, the failure to fully investigate was unrelated to her race.[139]In relation to 12 September 2022 grievance, it appears that the claimant was complaining about Mr Newton’s email of that date in which he wrote that he had reviewed her suspension from duty and that having read Ms Mai’s investigation report, he asked that a disciplinary hearing be arranged. The claimant’s case being it took a long time from her suspension to deciding on initiating the disciplinary process. (584 and 660)[140]Her concerns about the delay from the date of her suspension to deciding to deciding to initiate disciplinary proceedings and her treatment, were in an email she sent to Mr Newton dated 9 September 2022. (666-667)[141]We find that on 26 September 2022, Mr Newton emailed her to check whether there was anything else from her grievance she wanted dealt with formally other than the length of investigation. On 29 September 2022, Mr Chimhini respondent by stating that in relation to the claimant’s grievance, she wanted Mr Newton to look at the length of time it took to suspend her and the thoroughness and fairness of the disciplinary investigation. Mr Newton replied that he would have an outcome regarding the suspension and investigation. He then wrote that any other issues raised with the investigation would be dealt during the appeal. (745-746, 630-633)[142]We have come to the conclusion that although there was a failure to fully investigate the claimant’s concerns about the delay and other matters as part of the grievance process, there was no evidence that the failure was related to her Caribbean race, although we accept that it was unwanted conduct. The respondent leaving the claimant on suspension from 22 June 2022 to 8 November 2022, paragraph 3ix[143]The timeline was given by Ms Mai in relation to her investigation and report which was explained to the claimant and Mr Chimhini by Mr Newton. It is useful to note that the investigation was during the summer period with all the attendant difficulties of people due to be interviewed being on leave. The position was explained to Ms Mary Arnold, Regional Officer, Royal College of Nursing, by Ms Mai on 26 August 2022. (568-569)[144]After the report was submitted Mr Newton took the decision to invoke the disciplinary process. He wrote to the on 12 September 2022 stating, amongst other things, that: “I have reviewed your suspension from duty. Having read Sabine Mai’s report, I have asked that a disciplinary hearing is arranged. In the meantime, your suspension will remain in place. The hearing will be chaired by one of my peers. I understand the provisional date for this is 28 September, as an earlier date is not available that ensures those who need to attend can do so. A formal invite will be with you this week and you will also receive a copy of Ms Sabine Mai’s report. I understand the length of the process is frustrating. Kind regards” (660-661)[145]The disciplinary hearing was held over two non-consecutive days. The decision to terminate summarily, on grounds of misconduct, was on 8 November 2022.[146]We have come to the conclusion that although there was a delay from suspension to dismissing the claimant, the reasons given were: the time it took to decide on an investigator; Ms Mai’s meetings with the claimant and relevant witnesses; the viewing of the cctv footage; the time it took to write up the investigatory report; the time taken in deciding that there was a case to answer and that there be a disciplinary hearing; meeting with the claimant and her representative over one- and-a-half days; meeting with key individuals to understand the operation of Bridgewood House; viewing the cctv footage; and the time taken to write up the disciplinary outcome having regard to the large amount of evidence to consider. We can understand the claimant’s frustration in having to wait a long time for the disciplinary outcome, but there was no evidence that these factors, either separately or collectively, were related to the claimant’s race. The time taken was not related to race. The summary dismissal of the claimant on 8 November 2022, paragraph 3x[147]Although Ms Main investigated the claimant’s 20 October 2021 grievance, there was no evidence to suggest that her decision to dismiss the claimant was because of either the grievance or of race. The respondent’s management received a concern raised by Ms Khatun about the claimant’s reluctance to administer pain relief medication to ID, an end-of-life resident, and/or provide nursing care. It was treated seriously. The claimant was suspended on pay and an investigation was carried out by Mai who had no prior involvement with the claimant. A report was prepared, and the disciplinary procedure was invoked. Ms Main met with the claimant and Mr Chimhini on two occasions and discussed, at length, the allegation, the evidence and the claimant’s account of events during the night in question. It was accepted that the claimant did not have the relevant pain relief endof-life training, but as a nurse in a senior position, professionally, she failed to assess ID and provide appropriate nursing care. She gave no indication that she would change her behaviour should a similar situation were to recur. Having considered all of the evidence and the arguments presented by Mr Chimhini, the claimant’s conduct amounted to a serious breach of trust, entitling the respondent to terminate her employment summarily. There was no suggestion that her lack of action that evening contributed to ID’s death.[148]We could find no evidence that the decision to dismiss, taken by Ms Main, was unwanted conduct related to race. It was because of the claimant’s behaviour during the night in question, and her reluctance, during the disciplinary hearings to learn from her mistakes.[149]In relation to the dismissal appeal, there was no evidence presented upon which we were able to find was in support of the outcome being related to race. The claimant and Mr Chimihini were given every opportunity to present their case, after which Ms Sher-Arami carried out her own investigation into those matters raised by the claimant, such as, insufficient training and supervision; Mr Newton’s alleged involvement in investigation and possible outcome of it; the delay in the investigation; Ms Main asking Clare Scott a leading question; and viewing the cctv footage. She considered all of the arguments presented during the appeal and rejected them. We conclude that her decision was not rushed and was not related to race. Submissions[150]We have taken into account the written and oral submissions by Mr Chimhini, on behalf of the claimant, and by Mr Lester, counsel on behalf of the respondent. We do not propose to repeat their submissions herein having regard to Rule 62(5) Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, now rule 60(7) Employment Tribunal Procedure Rules 2024, which came into effect on 6 January 2025. We have also taken into account the authorities they have referred us to. Conclusion The claims of racial harassment
Conclusion
[151]Having regard to the judgment in the case of Richmond Pharmacology v Dhaliwal, we could find no evidence of either unwanted conduct or the conduct being related to race, applying the wider approach in the case of Carozzi v University of Hertfordshire and others. We went through the harassment claims and have not made findings in support of the claimant’s case. There has to be: unwanted conduct; that the conduct had either the purpose or effect of violating her dignity or of creating an adverse environment; and it must be related to race.[152]In relation to each of the harassment claims as set out in the List of Issues, all of the elements have not been established. Accordingly, they are not well-founded and are dismissed. Unfair dismissal[153]What was the reason for the claimant’s dismissal and was it fair? Was the reason the claimant’s race, paragraph 4i of the List of Issues? We are satisfied that the reason for the claimant’s dismissal is as set out in Ms Main’s outcome letter. It was a serious loss of trust and confidence. The claimant had failed to assess ID, an end-of-life resident and said that should a similar situation occur, she would not behave any differently. We have already concluded that her dismissal was not harassment related to race. Neither race, nor the claimant’s Black Caribbean race, played any part in the decision to dismiss her, and in the appeal outcome.[154]If the reason for the dismissal was misconduct, did the respondent genuinely believed that the claimant was guilty of that misconduct, paragraph 4ii? We have come to the conclusion that Ms Main had a genuine belief in the claimant’s guilt. The claimant failed to attend to ID and speak to the daughter to reassure her that all was reasonably being done to help ID. She had sufficient time to do so as she spent a long time at her desk completing the medical charts and talking on her mobile phone for, in total, 25 minutes. She refused to accept that she was in error in not attending to ID and said she would do the same again in similar circumstances. The disciplinary hearings lasted one-and-a-half days, and a lot of evidence was considered by Ms Main. She took into account the claimant’s job description, the Nursing and Midwifery professional standards, and concluded that the claimant’s conduct amounted to gross misconduct. There was no evidence that Ms Main had an ulterior motive for dismissing the claimant. Her belief in the claimant’s guilt was genuine.[155]If so, was such a belief based on reasonable grounds after having conducted a reasonable investigation, paragraph 4iii? The investigation by Ms Mai was reasonable, in that, she did not have prior knowledge of the claimant. She met with the claimant and her representatives. She had the evidence from Ms Khatun. She familiarised herself with the layout and operation of Bridgewood House. She viewed the cctv footage and took into account the standards expected of a registered nurse.[156]The claimant was able, with Mr Chimhini, to put forward her account of events and disputed the evidence before Ms Main. The hearings were very lengthy. Ms Main set out her reasons for summarily dismissing the claimant in her outcome letter dated 8 November 2022. She considered and refuted the arguments that: the investigation was flawed; human resources influenced the investigation; and the provisions of the Care Act had been breached. She took into account the provisions in the NMC Code 2015, that nurses are required to put the interests of patients and service users first. She considered Ms Khatun’s email, the content of which was not disputed by the claimant. She was also of the view that the claimant had not maintained competency in administering pain relief medication. The transcript of the investigation interview was considered, and the fact that the claimant had previously provided nursing care to ID when she changed a bandage. Her job description was taken into consideration, in that, she was required to “assess, plan, implement and evaluate resident care”. Ms Main found that the claimant’ response to Ms Khatun and her lack of care and compassion for ID, “fell significantly below the standards and expectations of Enfield Council” in relation to her job role, and in the NMC’s Code of professional conduct. As a senior nurse, she did not place ID at the centre of her decision-making.[157]These were the reasonable grounds taken into account by Ms Main in dismissing the claimant.[158]If so, was the decision to dismiss within the range of reasonable responses, paragraph 4iv? We had two concerns in relation to the procedure. The first was that there were no allegations in the invitation letters to the investigatory and disciplinary hearings, of failure to assess ID and a serious loss of trust and confidence. The second was the failure to take into account the claimant’s hitherto clean disciplinary record, length of service and alternatives to dismissal.[159]In relation to the first of our concerns, we accepted that Ms Mai had put to the claimant during the investigation meeting that she should have gone down to assess ID. The claimant replied that she was not told until much later that ID was in pain. In Ms Mai’s report, a copy of which was provided to the claimant and read out at the disciplinary hearing, she referred to the claimant’s refusal or failure to carry out a reasonable request, namely nursing duties for an end-of-life patient, ID. During the disciplinary hearing on 5 October 2022, Ms Mai said that even if the claimant was not trained or did not feel confident in carrying out pain relief medication, it was expected that she would, at least, see ID to see whether anything could have been done to alleviate her pain. This was challenged by Mr Chimhini in his crossexamination of Ms Mai. We were satisfied that the claimant was aware that the case she had to meet was, as a nurse, she failed to assess ID, an endof-life resident. The respondent accepted that she was not qualified to administer pain relief medication.[160]As regards a serious loss of trust and confidence, which was the reason for the claimant’s dismissal, the decision to dismiss was appealed. The claimant asserted that the punishment did not fit the crime. She, therefore, challenged the reason for her dismissal during the appeal.[161]Applying ILEA v Gravett, we are satisfied that the claimant was given the opportunity to respond to the case she had to meet.[162]In relation to not taking into account her clean disciplinary record, length of service, and alternatives to dismissal, we apply the judgment in the case of Alexis v Westminster Drug Project in which it was held that where trust and confidence has irretrievably broken down, length of service was an irrelevant consideration. We conclude that the same would apply to the respondent considering the claimant’s hitherto clean disciplinary record and alternative to dismissal.[163]The procedure followed by the respondent from the investigation to the appeal outcome, was fair having regard to the judgment in the case of Sainsburys Supermarket Ltd v Hitt, as the claimant and Mr Chimhini were given every reasonable opportunity to present their case.[164]Was the dismissal within the range of reasonable responses? In the respondent’s disciplinary policy, a serious loss of trust and confidence constitutes gross misconduct. It is for the employer to determine the seriousness of the misconduct, Tayeh v Barchester Healthcare Ltd. Ms Main said in evidence that the claimant did not reflect upon her actions. There was no compassion, no support, and felt a complete loss of trust and confidence. Following the judgment of the Court of Appeal in Newbound, applying section 98(4), we have concluded that it cannot be said that dismissal fell outside the range of reasonable responses of a reasonable employer. The respondent had followed the guidance in the case of British Home Stores v Burchell and the relevant provisions in the ACAS Code of Practice. Accordingly, the dismissal of the claimant was fair. Her unfair dismissal claim is, therefore, not well-founded and is dismissed.[165]We can well understand that the claimant is upset at having been dismissed. On the night in question she was in charge, as the Senior Nurse on shift, of over 60 residents and staff, and had to deal with two emergencies requiring the attendance of two ambulances, as well as carrying out her nursing duties. However, as the Senior Nurse her failure to assess ID and to reassure her daughter were serious omissions on her part. Compounded by the fact that she said that she would do the same again. Her one comfort is that she had reflected over her conduct and had relevant training resulting in the Nursing and Midwifery Council taking into account the contextual circumstances prevailing at the time and concluding that her Fitness to Practise was not impaired. 165. The other issues in paragraphs 4v to 4vii, are no longer relevant because they are predicated upon the dismissal being adjudged to have been unfair. Approved by: Employment Judge Bedeau 22 February 2025 N Gotecha Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practicedirections/