Mrs A Berko v Hightown Housing Association Ltd: 3333864/2018
JUDGMENT
[1]The claimant has not been unfairly dismissed.[2]The claimant’s claim is dismissedREASONS
[1]The claimant by a claim form presented to the tribunal on 10 October 2018, presents a complaint for unfair dismissal, on her employment being summarily terminated for reasons of conduct. The claimant commenced employment with the respondent on 13 January 2003. The effective date of termination was 22 August 2018; the claimant having then been continuously employed for 15 complete years.The Issues
[2]The issues for the tribunal’s determination were agreed at the outset of the hearing as follows: 2.1. What was the reason for dismissal? The respondent maintains that the reason for dismissal was misconduct, and is a reason that could found a fair dismissal pursuant to Section 98 of the Employment Rights Act 1996. 2.2. Was a fair procedure followed? 2.3. Did the respondent have a general belief in the misconduct of the claimant? 2.4. Was there a reasonable investigation? 2.5. Following that investigation, did the respondent hold a reasonable belief that the claimant committed the acts complained of? 2.6. Was dismissal within the reasonable band of sanctions opened to the respondent? 2.7. Was dismissal reasonable in all the circumstances of the case, sufficient for the purpose of section 98 (4) of the Employment Rights Act 1996. Remedy 2.8. Did the claimant contribute to her dismissal? 2.9. If the dismissal was procedurally unfair, was there a percentage chance that the dismissal would have ensured in any event? 2.10. Has there been a failure to follow ACAS guidelines and if so, should there be an adjustment pursuant to section 207A of the Trade Union Labour Relations (Consolidation) Act 1992? EvidenceRemedy
[3]The tribunal received evidence from the claimant and from the following on behalf of the respondent: Mrs Joanna Pearce, Contracts Manager and, Mr Sebastian Moh, Head of Care and Supported Housing for Buckinghamshire, on behalf of the respondent.[4]The witnesses evidence in chief was received by written statements, upon which the witnesses were then cross examined. The tribunal had before it a bundle of documents, Exhibit R1. From the documents seen and the evidence heard, the tribunal finds the following material facts: Facts[5]The respondent is a charitable housing association, operating in a number of counties nationally, providing support and care to persons in need and to persons who cannot afford to buy or rent accommodation at market value. The respondent manages approximately 6,000 homes and employs 900 staff; principally in its care and supported housing schemes.[6]The claimant was employed as a “waking night project worker”, having originally been engaged as a “project worker” from 13 January 2003. The terms and conditions of her employment as a waking night project worker were effective from 1 January 2005. The claimant’s hours of work as a waking night project worker were 9pm – 7:30am.[7]As a waking night project worker, it was the claimant’s role, inter-alia, to provide care to service users in their home throughout the night. The working ratio between staff and residents were one member of staff to three residents. At the material time relevant to the issues in this case, the service having recently lost two residents for whom the claimant had care; being recently deceased, the claimant’s care ratio was then one-to-one.[8]The respondent’s disciplinary procedures are at R1 page 47-48, which at paragraph 7, it provides for a formal stage, in the following: “7 The Formal Stage7.1 The purpose of the formal disciplinary investigation is to determine all the facts associated with the allegation(s) and establish whether there is a case to answer. All disciplinary matters will be investigated as quickly as possible.7.2 It is very important that the employee is told what the allegation(s) are and they have the opportunity to provide their own explanation at an early stage. It is possible that there may be a satisfactory explanation that may resolve the matter and no further action is needed.7.3 The disciplinary investigation may include the follow: a) Interviews with the employee, relevant witnesses [including Bank Workers] and, where appropriate, service users. b) A review of Hightown’s relevant policies, procedures, local procedures and processes for compliance and examination of all supporting evidence.[9]The further disciplinary process is provided in the following terms: 8. Disciplinary Investigation Interview8.1 The investigating manager will invite the employee to a disciplinary investigation interview to discuss the allegation(s) and the areas of concern.8.2 The investigating manager will send a letter or an email confirming the arrangements for the disciplinary investigation interview providing at least 2 days’ notice. A template letter will be provided by HR.8.3 The employee will have the opportunity to be accompanied by a trade union representative or a work colleague. The Staff Forum can also be contacted for support. The work colleague should not be someone who has already been or is likely to be part of the disciplinary investigation.8.4 The meeting is the employee’s opportunity to explain their response to the allegation(s) and the areas of concern.8.5 The investigation interview may be stressful for the employee so the investigating manager should prepare carefully and try to put the employee at ease and allow for breaks.8.6 The investigating manager will: Explain the purpose of the disciplinary investigation interview; Confirm the allegation(s) and the areas of concern; Explain the possible outcomes from the investigation (a case to answer or no case to answer, further details below); Make the employee aware that they might need to reconvene a further disciplinary investigation interview; and Make the employee aware they will be kept updated throughout the investigation.8.7 Before concluding the interview the Investigating Manager may choose to have a brief adjournment to review what has been established so far and see if they have any immediate questions, this may avoid the need to reconvene the interview at a later date.8.8 A member of the HR team may be present at the disciplinary investigation interview.8.9 Within 5 working days after the meeting the investigating manager or HR will send the employee a copy of the notes from the disciplinary investigation interview. The employee can request for the notes to be altered, if any changes are accepted the notes will be updated, if any changes are not accepted a copy of what was requested will be kept on file. 9. Witnesses9.1 Any witnesses will also be interviewed and asked to sign the notes taken from the meeting with them. The investigating manager will make the witness aware before the meeting starts that the notes may be used as part of the investigation and therefore shared with the employee.9.2 The witness will also be informed that they may be required to answer questions about their account at a disciplinary hearing where the employee will be present.[10]Investigation report10.1 On completion of the disciplinary investigation the investigating manager will produce a written report outlining their conclusions and recommending either: There is no case to answer Further informal action is required, e.g. training/coaching; There is a case to answer and a disciplinary hearing should be arranged.10.2 A template investigation report will be provided by HR. If there is no case to answer or informal action is required the investigating manager will write to the employee to inform them of this.10.3 If there is no case to answer or informal action is required the investigating manager will write to the employee to inform them of this.[11]Disciplinary Hearing11.1 Once appointed by their line manager the hearing manager will write to the employee to inform them that the investigating manager has concluded there is a case to answer and a hearing will be arranged. A template letter will be provided by HR.11.2 Where possible, the hearing manager will be a manager who has not previously been involved in the case and who is at least as senior as the manager who carried out the investigation.11.3 The employee will have the opportunity to be accompanied by a trade union representative or a work colleague. The Staff Forum can also be contacted for support. The work colleague should not be someone who has already been or is likely to be part of the disciplinary investigation.11.4 The employee will be given: a) At least three days’ notice that they are required to attend a disciplinary hearing under the Hightown’s Disciplinary Process, be given details of the time and venue and informed of their right to be accompanied by a work colleague or trade union representative; b) A copy of the disciplinary investigation report and appendices; and c) Access to the relevant information which they require to allow them to prepare for the hearing.11.5 If the employee wishes to call any witnesses it is up to the employee or their representative to make all the necessary arrangements. If contact is not allowed due to the employee being suspended this request should be made to HR or the hearing manager.11.6 The employee should make every effort to attend the hearing. If the employee or their representative is unable to attend the hearing for good reason, the hearing may be rescheduled by up to five working days.11.7 The reasons why the employee can’t attend must be confirmed to the hearing manager in writing. In the event of an illness a fit note will be required.11.8 Where an employee is unable to attend a disciplinary hearing, without good cause, or the hearing is rescheduled and the employee does not attend, the hearing manager should make a decision based on the evidence available.11.9 During the hearing: a) the hearing manager will explain to the employee the nature of the complaint and present any evidence he/she has been given to support the facts; b) the employee will be given the opportunity to state their side of the case, answer the allegations made and any mitigating circumstances and consult privately with their representative; c) The employee’s representative has the right to explain and sum up the employee’s case, but may not answer any questions on behalf of the employee; d) the hearing manager will inform the employee of the decision in writing within 10 working days (if this is not possible the employee will be updated) and the letter will inform the employee of the right to an appeal if a sanction has been applied; e) the hearing manager will advise the employee of the consequences if the offence continues or improvements have not been made within the timelimit.11.10 Within 10 working days after the hearing the hearing manager or HR will send the employee a copy of the notes from the disciplinary hearing. The employee can request for the notes to be altered, if any changes are accepted the notes will be updated, if any changes are not accepted a copy of what was requested will be kept on file.11.11 The outcome from the disciplinary hearing will either be: No case to answer; Coaching and or training One of the sanctions below is applied; One of the alternative disciplinary outcomes is applied; Or a combination of the above”. 10. By paragraph 12 there is then set out provision for sanctions of; first written warning, final written warning, and dismissal on some other substantial reason, and by paragraph 12.10, provision is made for dismissal for gross misconduct which at paragraph 12.12, it provides: “12.12 Certain disciplinary offences are considered by Hightown to constitute gross misconduct and are considered serious enough to warrant dismissal without prior written warning. Examples of gross misconduct are below. 12.13 The employee will be provided with, in writing, the reasons for dismissal, the date in which the employment will terminate and their right to appeal. 12.14 Dismissal for gross misconduct may be summary i.e. without notice or pay in lieu of notice. This will be decided by the hearing manager on a case by case basis. 12.15 Any decision to dismiss an employee must be endorsed by the Board, Chief Executive, Director or a Senior Manager as follows: The Board must authorise the dismissal of the Chief Executive or a Director; The Chief Executive can authorise the dismissal of a Senior Manager, Manager or a member of staff; A director can authorise the dismissal of a Senior Manager, Manager or a member of staff; and A senior Manager can authorise the dismissal of a member of staff.” 11. At paragraph 13, provision is provided for alternative disciplinary outcomes as follows:- “13.1 Alternative measures may also accompany a disciplinary action less than dismissal in appropriate circumstances. The alternative measures could be: Demotion to a new post without pay protection Longer period of a warning Extend the period of a live warning.”[12]At paragraph 15, provision is made for examples of gross misconduct, which provide: “15.1 the following disciplinary offences are examples of offences that are sufficiently serious as to warrant dismissal. The list is illustrative and not exhaustive: Absent without leave (AWOL); … Violent, dangerous or intimidatory conduct …..; ….[13]An appeal process is provided for at paragraph 16, which proves that the appeal hearing is to review the disciplinary decision and ensure that it was taken fairly. It is not intended to repeat the detailed investigations of the disciplinary hearing. It then sets out at paragraph 6.3 that the appeal will normally only consider the following: Perceived unfairness of decision; Severity of sanctions New evidence that has come to light which was not available to the disciplinary hearing Procedural inadequacies[14]The provisions then set out the process for appeal and the appeal hearing.[15]By paragraph 17 provision is made for suspension, which provides: “17.1 In accordance with the Suspension Procedure, an employee may be suspended by Hightown on full pay to allow for an investigation to take place, in circumstances where the employee’s continued presence at work presents an unacceptable risk to Hightown its employees or customers, or may prejudice any investigation. 17.2 Save for in exceptional circumstances, any decision to suspend should normally be approved by the relevant Director and the Head of HR. The employee will be advised in writing of the reasons for the suspension and how pay is to be calculated during this period. 17.3 Any suspension will be kept as short as reasonably practicable and will be kept under review. During the suspension the employee must remain available for work and must attend investigation meetings when required. The employee will be kept up to date with the progress of the investigation at all times. 17.4 During a suspension, an employee will not be allowed to come into Hightown’s premises or to contact any other staff members, except for their line manager or the investigating manager without prior permission. Should the suspended employee wish to contact other members of staff, this must be arranged through HR or their line manager or the investigating manager.”[16]Paragraph 20 of the procedure makes provision for overlapping grievances, which provide: “where an employee raises a grievance during a disciplinary process, the disciplinary process will not ordinarily be suspended unless the grievance has a direct impact on the disciplinary process. Where the two are related, it may be appropriate to deal with both issues concurrently.[17]The respondent’s grievance procedure is at R1 (page 39 – 41) and the suspension procedure is at R1 (page 42 - 46)[18]On 28 March 2018, the claimant was due to commence work at 9pm. The claimant arrived at 9:05pm. On her arrival at the house, the claimant states that she noted there were 3 wheelie dustbins in the drive for collection the following day, which she wheeled out to the road side for collection, stating that she then entered the home at 9:15pm. The respondent states that the claimant arrived at 9:20pm.[19]On the claimant entering the building, she was confronted by her manager, Ms King, who addressed her as to her arriving late, stating that her (Ms King’s) shift had ended at 9pm and she had been waiting on the claimant to arrive so that she could leave. Ms King had commenced her shift at 2pm.[20]The claimant does not, accept that she was late.[21]The claimant states that she rang the house bell at 9:15am. It is the claimant’s evidence that, on Ms King opening the door, she started attacking her stating “you are late” and “you are always late”.[22]In this respect, the tribunal was taken to a number of statements of colleagues of the claimant who state that the claimant was on average, late 80% of the time. The tribunal also notes the claimant’s evidence by her written statement that, she seeks to arrive for work by 9 and 9:05pm.[23]It is the claimant’s evidence which, in the main is not in dispute, that she was asked to put in place the resident’s sleeping system, and that as she was putting her bag down and washing her hands, Ms King asked her if she had seen the cooker, to which the claimant stated she had. Ms King asked he claimant if she saw how dirty the back of the cooker was, stating that she (the claimant) was to have been pulling the cooker out to clean behind it. It is the claimant’s evidence that, she replied that she could not do it by herself but could if she had help. Ms King informed the claimant that it was a light cooker and could be wheeled out.[24]It is the claimant’s evidence that she was here told that she was rude.[25]It is the claimant’s further evidence that, she then went to the service user’s room, and from the monitor, she could hear Ms King calling her names. On the claimant being pressed in evidence, before the tribunal as to the names she was being called, the claimant could not identify any specific names, otherwise than being referred to as rude.[26]By the claimant’s statement, as part of the internal investigation into the events, it was the claimant’s evidence that “I came out and told her that she has no right to talk to me like that”. She said, “that’s so rude” and was shouting “how dare you”. She did not consider that I had just returned to work after four nights off. Anything to do with the cooker could have been done during that time. She was slamming the lounge door to my face while I was trying to talk to her. She was calling me names and she was still shouting at me …. I said to her “you call yourself a manager and look at the way you are talking to me”. I could not take it any more and I decided to go with my bag to my car. I said to Sam “you don’t want me here” and she said “yes”…. I said “you call yourself a manger, look at the way you write messages in the communications book, no please or thank you, she just writes do this or do that”.[27]It is the respondent’s case that on Ms King being approached by the claimant, Ms King moved into the lounge away from the claimant and shut the door. However, on the claimant following Ms King, Ms King asked the claimant if she could do the handover, but the claimant stated she was going home. It is here noted that the respondent states that on Ms King then walking towards the laundry door, where the claimant was standing, the claimant gave Ms King a hard push to her right breast, shouting she was going home.[28]There is then some dispute as to the subsequent events on the claimant and Ms King seeking to leave the premises by their respective cars. The claimant states that she had gone to her car first. Ms King’s evidence being that she had gone to her car first, having advised the claimant that her shift hand ended. Exactly how the events unfolded is not material to the issues for the tribunal’s determination, otherwise than to note that the claimant drove away from the site, leaving Ms King in the car park.[29]On Ms King then being the only member of staff at the premises, and unable to leave the service user unattended, she telephoned “on call” to advise them of the situation and made calls for a “bank worker” to cover the shift.[30]Whilst Ms King was on the phone making these calls, the claimant returned to the premises, ringing the doorbell which Ms King answered, who then returned to the office to continue her call. Whilst on the call, the claimant, again left the building and drove away.[31]It is the claimant’s evidence that, on initially driving away from the premises, she had done so to cool off, and had returned to the premises to “try to work it out”, with Ms King, the claimant stating that on her hearing Ms King talking to someone on the phone saying her name, although she did not hear what was being said, she was very upset, and that she did not then believe she was in a fit state emotionally, to provide the service to the service user and decided to leave.[32]The claimant subsequently wrote a complaint in respect of the above incident, which was then resent at 4:51am on 29 March 2019, the claimant having incorrectly addressed her previous e-mail to the head of care and support and housing, Mr Moh. A copy of the correspondence is at R1 page 225 – 227. The claimant therein asked for assistance in resolving the matter, and further stated: “I was very very upset concerning what has happened and what I am going through mentally, only to arrive at work and be treated like nothing. Abused and accused by the manager who is supposed to support me in this difficult time. I was very emotional and upset, I have to leave work and come home. During my 15 years of service to Hightown I haven’t seen anything like this. A manager undermining the integrity of her own staff and treat me like nothing. I don’t know whether she hates my colour or just doesn’t like me. I can’t believe what I have to suffer this evening in the hands of Sam King. Thanks”[33]Equally, on 28 March, that evening, Ms King prepared an accident and incident form, giving her account of the events of that evening, a copy of which is at R1 page 223 -224.[34]Mr Moh has not responded directly to the claimant’s correspondence.[35]On 4 April 2018, following a telephone discussion with the claimant, Mr Moh suspended the claimant from duty. The claimant was subsequently written to and advised that an allegation having been raised against her, it was to be investigated and that the issues raised, highlighted potential concerns in respect of the claimant’s conduct at the work place. The claimant was further advised, that: “under the circumstances, in order that a full investigation can take place, it is standard procedure for an employee to be suspended from their role. Suspension is not in any way an indication of guilt, does not constitute disciplinary action and disciplinary action may not necessarily follow.”[36]The claimant was also advised “we appreciate that this may be distressing for you. We would encourage you to seek support from the employee assistance programme offered by Hightown. A copy of the leaflet is enclosed”[37]A copy of the suspension procedure was also furnished to the claimant.[38]The claimant does not challenge the procedure on suspension, albeit she does state for the record that, the procedure had not been fully complied with, in that paragraph 6 of the procedure provides that “the employee will be kept regularly updated of the likely duration of the suspension period and the suspension will be regularly reviewed by the relevant director for the HR business partner, which had not been done, namely: “The line manager of the suspended employer should contact them regularly to update them on developments at work and also check on the employee’s wellbeing”[39]This provision had not been complied with, and was so acknowledged and apologised for, in the claimant’s appeal.[40]Mr Ncube, Care & Support Housing Contracts Manager, was charged to investigate the matter, which on the claimant being on leave from 6 to 24 April, on 20 April 2018, he wrote to the claimant inviting her to a disciplinary investigation interview for the 4 May. The letter of invite advised: “This will be a disciplinary investigation interview in relation to the following allegations of serious/gross misconduct: 1. Threatening behaviour towards a colleague; 2. Leaving the service unstaffed and therefore putting a vulnerable adult at risk”[41]The claimant was then advised as to the officers that would be present at the interview from the management side, and advised of her right to be accompanied, and that it was being addressed in accordance with the association’s disciplinary policy, for which a copy was furnished.[42]The claimant was further advised that the interview was to allow Mr Ncube the opportunity to consider all the facts relating to the allegations, and asked to bring with her, any information that she felt might be useful to the investigation. The claimant was finally advised that depending on the outcome of the investigation, she may be required to attend a disciplinary hearing.[43]The claimant was duly interviewed on 4 May 2018, who on attending unaccompanied, was questioned thereto, to which she advised that she had noted the right in the letter of invite, but thought that she was the best person to present her claim. Notes of the interview are at R1 (page 233 – 238)[44]There is no challenge to the interview, which afforded the claimant a full opportunity to present her version of the events, which addressed in detail the claimant’s absence from the premises for her appointed shift, and the implication thereof to the service.[45]The claimant does not challenge the procedure or conduct of that interview.[46]The minutes of the meeting were subsequently sent to the claimant on 16 May 2018, for which she was asked to check its content and make any amendment. She was further asked to sign and return the document, and that should no response be received, then it would be assumed that there were no changes required and that she was in agreement with the document.[47]The claimant has not challenged the record of the interview.[48]Mr Ncube, interviewed Ms King, Operations Manager, and other support workers; Ms Fiske, Ms Groves, and Ms Horbin; and bank worker, Ms Bacon; and the assistant registered care manager, Ms Cousins, copies of which interview notes are at R1(pages 249 – 265)[49]On 28 June 2018, Mr Ncube furnished his investigation report, which, in respect of the claimant having left the service unattended and thereby put a vulnerable service user at risk, he concluded that, although there were no witnesses present to establish what actually transpired, it was not in dispute that the claimant had abandoned her shift and therefore put a service user at risk.[50]It is here noted that in Mr Ncube making his determination, he observed that, it became clear that; “AA does not agree with this “as putting a service user at risk”. AA’s response to SK’s working long hours, breach of working time directives and risks to service user, e.g. SK falling asleep during the night and putting GG at risk, “I can’t answer”. I asked the question again, if AA understood the implication of SK working from 2:30 pm and then working a night shift. AA’s reply was “I understand what you are saying, I am the victim, she abused me and attacked me when I came on shift”. It is my view that AA lacks an understanding of her role during the night and what that entails around keeping people safe.[51]In respect of the second allegation, that of displaying threatening behaviour towards SK, Mr Ncube concluded that there were no witnesses or cameras during the night in question and therefore it had not been possible to determine what was said by who or who had threatened who, stating, that: “AA alleges that she was abused verbally by SK “she was shouting and calling me names in my face and abusing me, I said hang on”… SK during her investigation meeting alleged that AA “pushed me in my right breast and shouted that she was going home”. One person is accusing the other and it is a case of one person’s word against the other. Chances are that both staff may be, due to personalities, could not calm down or back down from the situation and this may have escalated. It is therefore inconclusive due to lack of evidence and/or witnesses to ascertain which member of staff had been aggressive”.[52]Mr Ncube accordingly concluded that the first allegation had substance that, the claimant left the service unattended and left a service user at risk, recommending that that allegation only proceed to a disciplinary hearing.[53]On 5 July 2018, the claimant was written to Ms Pearce, Care and Supporting Housing Contractor Manager, who advised the claimant that the investigation had been concluded and that the matter was to proceed to a disciplinary hearing, and furnished her a copy of the investigation report. The claimant was further advised: “you are therefore requested to attend a disciplinary hearing on Wednesday 25 July 2018…… This is in accordance with the association’s disciplinary policy, a copy of which has been provided to you. I must make you aware that a potential outcome of the hearing could be your dismissal on the grounds of gross misconduct. You are being asked to attend this meeting with regards to the following allegation: 1. Leaving the service unstaffed/unattended, and therefore putting a vulnerable adult at risk.”[54]The claimant was then advised of her right to be accompanied at the hearing and that should she wish to submit any documents to be considered as part of the hearing, these were to be submitted at least two working days prior thereto, and that should she like to call any witnesses to the hearing, she was to let her know.[55]The claimant was further referred to the Employee’s Assistance Programme for support.[56]The disciplinary hearing was duly heard on 25 July 2018. Notes of which are at R1 (page 312 – 323a)[57]At the outset of the hearing, on the claimant attending without a companion, the claimant was asked whether she was happy to proceed without a representative which the claimant confirmed. The meeting then identified the issue for determination, being; “leaving the service unstaffed/unattended and therefore putting a vulnerable adult at risk” and in respect of which the claimant confirmed that she had received the investigation report.[58]The claimant was further advised that Ms King was in the building, and that she could be called as a witness if needed to explain or clarify a point. The tribunal pauses here, as the claimant has raised issue that Ms King was in an adjoining room, and with whom Ms Pearce had conferred, on an adjournment having been taken. The claimant states that she had been so informed as to Ms King’s presence, and believes that Ms Pearce had consulted with her. Ms Pearce in evidence was clear that, Ms King was not in any adjoining room to the hearing room, although Ms King had been in the building, and that on the adjournment referenced by the claimant, she had retired with HR and had not conversed with Ms King at any stage during the proceedings. The tribunal accepts this to have been the case.[59]The claimant was advised that she would be afforded the opportunity to put forward her version of events, being asked to be as clear as possible, and further advised that the hearing would proceed on the basis of the claimant being presented with the information to which she would be asked to give her version of events, following which, Mrs Pearce would sum up and adjourn to reach a decision in respect of the allegation that, she had left the service unstaffed /unattended and therefore put a vulnerable adult at risk.[60]The hearing thereon had reference to the investigation report, its conclusions, and recommendations. The claimant was given the opportunity to put forward her version of events. There is no challenge to the conduct of the hearing or the note of the recorded minutes of the meeting.[61]On 27 July 2018, the claimant was furnished with the minutes of the meeting, being asked to read and make any amendments as necessary. She was further advised that if no response was received within 5 working days, it would be accepted that no changes were required and that the claimant was in agreement with the document.[62]The claimant did not make any amendments to the record.[63]On 30 July 2018, the claimant raised by correspondence addressed to “whom it may concern” a grievance, on issues of; abuse, intimidation, victimisation and bullying, suffered from Sam King, the registered manager, in respect of the incident on 28 March 2018, drawing reference to her e-mail of 28 March sent to Mr Moh. The claimant thereon set out her version of events of 28 March, further stating: “… I felt victimised and singled out for a job which was normally done on Mondays and it clearly states on the shift planner “clean in and out of the cooker” but not pull the cooker. I have just returned to work from being off for four nights. I felt harassed on the night because I was supposed to be working on that night, but rather I was met with an intimidation and a hostile environment and left with emotional and mentally drained by the abuse suffered on the night by my manager. I felt after reporting the abuse, bulling, intimation, humiliation and victimisation by my manager, none of these were investigated, but rather have been suspended from work for leaving the service which I am being disciplined for with the possible outcome of dismissal. Not taking into account the mitigating facts which led to me leaving the service. I feel the manager’s conduct be investigated in all services she manages and where she fell short the appropriate training to be given. It’s unacceptable for any staff to suffer mentally, emotionally, harassed or treated like nothing by any manager because of their position. It is also important to know that I had no issues prior to the event of 28 March 2018. Yours sincerely ….”[64]By correspondence of 31 July 2018, the claimant’s grievance was acknowledged by Andi Shepherd, Care and Support Housing Contracts Manager, who advised that he would address the matter under the association’s grievance procedure, furnishing a copy thereof.[65]The claimant was further advised that, she would be called to a formal meeting to discuss the grievance which was to be scheduled for 7 August 2018. The claimant was further advised of her right to be accompanied.[66]The grievance hearing was duly held on 7 August 2018, notes of which are at R1 (page 333 – 335).[67]On the claimant raising her grievance, Mrs Pearce, put the disciplinary matter on hold pending the conclusion of the grievance proceedings, as the grievance related to Ms King’s alleged behaviour towards the claimant, for which the disciplinary matter was partially concerned; Mrs Pearce determining that it would be best to wait until the grievance had been concluded before making her final decision with regard to the disciplinary case she had heard against the claimant.[68]It is Mrs Pearce’s evidence that, she started to prepare her disciplinary outcome report on 7 August, sending a final version to HR on 13 August 2018, having at some stage, the precise date of which she could not recall, being informed by Mr Shepherd that although he had not had a chance to finalise the grievance outcome letter, he was not upholding the claimant’s grievance, in that the claimant had been unable to substantiate her allegations of abuse, intimidation, victimisation or bullying by Ms King with any examples, despite her being pressed thereon. Mrs Pearce states that, she then finalised her decision.[69]The claimant was notified of the outcome of the disciplinary hearing by letter of 22 August 2018. The letter apologised for the delay in providing the outcome, stating that it had been due to the disciplinary proceedings having been put on hold whilst her grievance was looked into, and that as Mr Shepherd had then met with all the relevant parties involved in the grievance raised, and had reached a decision not to uphold her grievance. The claimant was advised that the full report of the grievance would be sent to her by Monday 3 September. In the event, the grievance outcome letter was not sent until 5 September 2018. Mrs Pearce then advised that she was now in a position to confirm the disciplinary outcome.[70]Mrs Pearce made findings in respect of the allegation that “you left the service unattended and therefore put a vulnerable service user at risk” and on the allegation, “you allegedly displayed threatening behaviour towards SK”.[71]It was Mrs Pearce’s findings inter alia that, in relation to the claimant leaving the service user unattended, putting them at risk, despite the claimant alleging that she had not left the service user unmanned because Ms King was still present, she found that the claimant had left her shift without permission and was therefore absent without leave, identifying that this was an act of gross misconduct.[72]In reaching her conclusion, it is Mrs Pearce’s evidence that, she took into account the mitigation raised by the claimant, that she felt victimised, harassed and bullied by Ms King and in respect of which, Mrs Pearce concluded, the following:72.1 That, on the claimant arriving late for her shift, and on Ms King stating, “you are always late”, such behaviour of a manager in challenging an employee’s lateness, where this was a regular occurrence, as appeared to have been the case with regard the claimant, this did not amount to victimisation, harassment, victimisation or bullying.72.2 Of the claimant being asked to clean behind the cooker, Mrs Pearce considered that the claimant had been asked to carry out a reasonable task that was not outside of her job role, and therefore did not amount to victimisation, harassment or otherwise bullying.72.3 With regards the claimant being sworn at and shouted at by Ms King, it was Mrs Pearce’s determination that from the information gathered in terms of Ms King’s management style, normally that she was supportive, and that despite the claimant alleging that Ms King’s correspondence in the communications book was rude, she had not found this to be the case.72.4 With respect the claimant alleging she had been accused of being “rude and aggressive” because she had written e-mails in capital letters, on Mrs Pearce reviewing the e-mails in question, as disclosed by the claimant, she had noted that Ms King had not called the claimant “rude and aggressive” but had pointed out to the claimant that writing in capital letters made her emails appear rude and aggressive and had asked the claimant to be mindful of her tone. But despite this, the claimant had continued to write in capital letters to Ms King. Mrs Pearce concluded that Ms King had correctly challenged the claimant for inappropriate behaviour, which the claimant had ignored. She did not in these circumstances consider that the claimant was thereby being victimised, harassed or otherwise bullied by Ms King.72.5 Mrs Pearce further determined, following evidence that the claimant presented at the disciplinary hearing, that she had put her arm up with an open palm and that she had made contact with Ms King, that this was sufficient evidence to support a case that the claimant had pushed Ms King, and that it was then not an act of victimisation or harassment or bullying by Ms King, to advise the claimant that she would be reporting such behaviour.72.6 It was accordingly Mrs Pearce’s evidence that, she did not believe that Ms King had victimised, harassed or otherwise bullied the claimant, and that even if Ms King had been so guilty, on Ms King, having finished her shift, and therefore due to leave the service user’s house, the claimant would not then have been at further risk of victimisation, bullying or harassment by Ms King, and as such, there was then no reason for the claimant to abandon her shift so as to amount to an explanation in mitigation for the claimant then abandoning her shift.72.7 It was further Mrs Pearce’s evidence to the tribunal that, in reaching her decision, she had concerns as to the claimant appreciating the severity of her actions in that when questioned by Mr Ncube during the investigation interview, as to whether she was aware of the risks of leaving the service user’s property when she was meant to be working, such that Ms King had to stay at the premises despite her having completed her shift, the claimant had maintained that she was the victim; Mrs Pearce was concerned that the claimant did not consider or understand the danger of risk to the service user, on Ms King being tired for which she could have fallen asleep or made some other error as a consequence.72.8 In addition, Mrs Pearce was concerned that when she asked the claimant whether, on reflection, she would have behaved differently, the claimant stated that she would have taken the on-call manager’s number and let them know what had happened. Mrs Pearce was concerned that throughout the process, the claimant had repeatedly failed to identify the consequences of her abandoning her shift, and had shown no remorse for her actions, and for which she was then not confident that the claimant would not act similarly in the future.72.9 On the claimant having given evidence at the disciplinary hearing as to her “putting up an open palm”, which then made contact with Ms King, Mrs Pearce determined that the additional allegation of the claimant “displaying threatening behaviour towards SK”, despite Mr Ncube’s conclusions following the investigation, that there was no case to answer, was sufficient evidence to support that allegation on the balance of probabilities, for which Mrs Pearce determined that that allegation was also proved.[73]It was Mrs Pearce’s decision after taking into account the claimant’s length of service and that there were no live disciplinary sanctions on her record, that, the claimant’s behaviour was “so serious” that it amounted to gross misconduct under the respondent’s disciplinary procedures, and that it warranted dismissal in the circumstances, Mrs Pearce stating, “I have considered all the evidence before me, taken into consideration your explanation, and your work record, I can confirm that I have established to a reasonable satisfaction that you have abandoned your shift and you behaved in an intimidatory way by making physical contact with SK and that you should be dismissed on the grounds of gross misconduct”.[74]The claimant was then advised that her employment was terminated immediately, and advised of her right of appeal. Notes of the disciplinary hearing are at R1, pages 323 – 328. The disciplinary hearing outcome report is at R1, pages 336 – 340, and the disciplinary hearing outcome is at R1 pages 345 – 347.[75]By correspondence of 22 August 2018, the claimant presented an appeal on the grounds that, in respect of the first allegation, she felt that the decision was too harsh, and that the impact of the night of 28 March on her, had not been considered, and that in respect of the second allegation, the finding of Mrs Pearce was contrary to what she, the claimant, had said, and what “oncall” had recorded that night of the incident.[76]The claimant further advised that she had been employed by the respondent for 15½ years with no disciplinary record, and that the investigation had framed her as an abusive and threatening person which she was not. The claimant then raised further issues as to; being informed of her suspension by telephone before receiving written confirmation; that in contravention of the suspension policy, she had been left throughout the whole investigation without any contact as stated in the procedures; and that she was appealing against the fact that Mrs Pearce had been informed of her grievance outcome, before she had been informed.[77]With regards the grievance, the claimant as above stated was furnished with the grievance outcome on the 5 September 2018, which did not uphold the claimant’s grievance. It was Mr Shepherd’s findings that, there was no evidence to support the claimant’s allegation and that the claimant had not been able to substantiate her claims, in that, she had not provided any information or been able to remember what words/comments had been used, on 28 March 2018, to support her allegations of abuse, intimidation, victimisation and/or otherwise bullying by Ms King. It was also noted that the claimant, had equally stated that prior to 28 March 2018, she had not had any problems with Ms King. Copy of the grievance investigation report is at R1, pages 355-359.[78]The claimant’s appeal was assigned to Mr Moh, Head of Care and Supported Housing for Buckinghamshire, being an appropriate manager. It is here noted that, the claimant has raised issue that Mr Moh had previously been involved in her claim, in that he had suspended her. It was Mr Moh’s evidence that on the claimant having sent her e-mail dated 29 March to him, and having received a complaint from Ms King in respect of the claimant having abandoned her shift, he had determined that an investigation was necessary on the claimant having abandoned her shift, and had determined that suspension was appropriate whilst the investigation was carried out, but that suspension was not a disciplinary sanction, and that he did not thereafter have any involvement in the disciplinary process until he was assigned to hear the claimant’s appeal.[79]The claimant has not challenged Mr Moh’s account of his involvement in the process.[80]By correspondence of 10 September 2018, the claimant was invited to the disciplinary appeal hearing for 18 September 2018, and advised that the matter would be chaired by Mr Moh, accompanied by Ms Demner, HR Business Partner, and of her right to be accompanied at the appeal hearing.[81]The disciplinary appeal hearing was duly heard on 18 September 2018, notes of which are at R1, pages 362 – 372.[82]During the hearing, the claimant submitted a statement, a copy of which is at R1, pages 373 – 375, by which the claimant states that Mrs Pearce had; failed to consider her mitigating factors; Mrs Pearce had believed her manager’s story as opposed to hers; and that in respect of the second allegation, Mrs Pearce had misrepresented the demonstration, she had given, of raising her hand and making contact with Ms King, so as to be confrontational and being perceived as threatening and abusive, which demonstrated that everything against her had been fabricated.[83]From the notes of the appeal, it is evident that the claimant was afforded a full opportunity to fully state her case in appeal, for which she addressed her full case in defence of the allegations against her, which was then fully explored by Mr Moh. The claimant has not challenged the record of the hearing as not being a full record.[84]It was Mr Moh’s evidence that; on questioning the claimant as to whether there was anything wrong with Ms King asking the claimant to clean behind the cooker, the claimant had stated that there had not been a risk assessment for her to pull out the cooker, but went on to state that when asked to clean the cooker, the cooker had already been pulled out; In respect of the claimant being asked for specific examples of Ms King’s bullying and harassing her, the claimant was unable to give any examples; and in respect of the claimant making contact with Ms King, the claimant stated that she did not touch Ms King but that having raised her hand, Ms King made contact with her hand.[85]Mr Moh concluded that the decision to dismiss the claimant was the correct decision in the circumstances, and did not uphold the claimant’s appeal, which was confirmed to the claimant by correspondence of 12 October 2018, a copy of which is at R1, pages 378 – 381.[86]The tribunal particularly here notes Mr Moh’s evidence that, on the claimant raising in her appeal that her length of service should have been considered during the disciplinary hearing, that whilst this had been considered by Mrs Pearce, he considered that the respondent’s disciplinary procedure was clear as to what acts constituted gross misconduct and therefore, ont two acts of gross misconduct, even considering the claimant’s length of service, this would be sufficient to warrant dismissal.[87]On 10 October 2018, the claimant presented a complaint to the tribunal. Submissions[88]The parties were unable to present submission within the time allocated for the hearing. The parties have submitted written submissions sent to the tribunal on 15 May 2019, which submissions have been fully considered.The Law
[89]In an unfair dismissal claim the burden is initially on the employer to identify a potentially fair reason for dismissal so as to satisfy section 98(1) and (2) of the employment rights act 1996[90]It then falls to be determined whether or not the dismissal was fair. The determination depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case, pursuant to S98(4) of the employment rights act 1996[91]The tribunal must consider whether the employer's conduct fell within the range of reasonable responses, of the reasonable employer, in all the circumstances of the case, without substituting its own decision as to what was the right course to adopt for that of the employer. The burden is neutral at this stage; the tribunal must make its decision based upon the claimant’s and the respondent's assertions with neither having the burden of proving reasonableness[92]The tribunal has to decide whether the respondent who dismissed the claimant on the grounds of the conduct in question, entertained a reasonable suspicion amounting to a belief in the guilt of the claimant, of that conduct, at that time. This involves three elements: I) the respondent must establish the fact of that belief; II) it must be shown that the respondent had reasonable grounds upon which to sustain that belief; and III) the respondent at the stage at which they formed that belief, on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case[93]The respondent does not have to prove beyond a reasonable doubt that the claimant was guilty of the misconduct, but merely that they (the respondent) acted reasonably in treating the misconduct as sufficient for dismissing the claimant in the circumstances known to them at the time. It is not necessary that the tribunal itself would have shared the same view in those circumstances. Furthermore, it does not matter if the respondent's view, if reasonable at the time, is subsequently found to have been mistaken.[94]Where there are admissions, the scope for the investigation is limited.[95]Any procedural defect must always be sufficiently serious to render the dismissal unfair. The tribunal notes that the ACAS code is only a guide, and is not a mandate to; failure to comply with every detail does not render a dismissal unfair. In considering compliance with the ACAS code the respondent’s size and resources are to be taken into account.[96]Once Unfair Dismissal is found, where the tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly (section 122 (2) employment rights act 1996)[97]Where the tribunal finds a dismissal was to any extent caused or contributed to by any action of the claimant that was foolish, perverse or unreasonable, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable giving regard to the findings (section 123 (6) of the employment rights act 1996)Conclusion
[98]On the respondent having taken disciplinary action against the claimant for her actions on 6 March 2018, and for which her employment was terminated, I am satisfied that the reason for the claimant’s dismissal was conduct and is a reason that can found a fair dismissal.[99]On Mr Moh having received a report as to the claimant leaving her shift uncovered, for which “bank staff” had to be engaged, and on the complaint of the claimant, as to the events of the 6 March 2018, there was before Mr Moh sufficient information for which an investigation was warranted.[100]On the report received, as to the claimant’s actions on the night towards her manager, I find that it was not then unreasonable of Mr Moh to suspend the claimant pending the investigation, where the suspension was not disciplinary action, in circumstances where there was clearly friction between the claimant and her manager, in circumstances where the claimant was alleged to have failed to follow reasonable management instruction, and where it would be appropriate that the two individuals were kept apart.[101]On the claimant being suspended, I find that the respondent then carried out a reasonable investigation into the allegations raised against the claimant. Mr Ncube conducted interviews with the individuals involved, namely, the claimant and Ms King, and further interviewed all individuals who could reasonably give insight into the circumstance and background to the individuals’ working practices, so as to understand the working relationship between the claimant and Ms King, and the context in which the incident arose. And indeed, the claimant has not challenged the investigation as being anything other than thorough; she has not advanced that there were further lines of enquiry that should have been pursued, but which had not been.[102]On the product of Mr Ncube’s investigation, I find that the report then produced was a balanced representation of the facts following his enquiries, from which there was evidence to support the allegation that the claimant had left the service unattended and thereby put a vulnerable adult at risk, being one of the two allegations that had been made against the claimant, and for which allegation it was appropriate that the claimant be called upon to answer, which potentially amounted to an act of gross misconduct.[103]I am satisfied that the claimant was thereon fully apprised of the allegation against her and aware of the severity of the offence, and that her continued employment was in jeopardy, being furnished with all relevant evidence, such that she was then in a position to know the case she had to answer and prepare her defence. She was also fully aware of her right to be accompanied at the hearing, having been so advised.[104]The tribunal is satisfied that on the claimant being invited to a disciplinary hearing, she had been given sufficient time to prepare therefore, and was thereon fully advised of the process to be followed, and was given every opportunity to state her case in defence of the allegation against her, which is readily gleaned from the notes of the disciplinary hearing.[105]On the evidence before Mrs Pearce at the disciplinary hearing, there was clear evidence to support the allegation against the claimant that, she had left the service unstaffed and as a consequence had put a vulnerable adult at risk, and in respect of which it was open to Mrs Pearce to so find.[106]It is not in dispute that, on an individual leaving the service unstaffed, thereby putting a vulnerable adult at risk, this is conduct amounting to gross misconduct where, as a “waking night project worker”, it is that individual’s duty to care for service users in the home throughout the night, and where that carer then had sole responsibility for such service users.[107]On Mrs Pearce finding the allegations against the claimant of, “Leaving the service unstaffed and therefore putting a vulnerable adult at risk”, proved, it was open to Mrs Pearce to find that the claimant had thereby committed an act of gross misconduct.[108]On the further allegation of threatening behaviour towards a colleague, on this not having been an allegation for which the claimant had been called on to answer, as set out by the disciplinary invite letter and Mr Ncube’s report, I find that this was not then an allegation which was open to Mrs Pearce to adjudicate on, in circumstances where it had not been brought to the claimant’s attention that she was to face that additional charge, and for which she was not then afforded an opportunity to defend.[109]Addressing sanction, and in giving consideration to Mrs Pearce’s explanation for terminating the claimant’s employment, having found the claimant guilty of both allegations, the tribunal has been referred to the authority of Tayeh v Barchester Healthcare Limited (2012), UK EAT/0281/11, per his honour Judge Richardson, at paragraph 34, in respect of multiple disciplinary charges, that: 34. Where, as here, there was more than one charge, a tribunal should keep in mind the question whether the charges were regarded by the employer as cumulative or stood on their own. 35. If the charges were cumulative, in the sense that all of them together formed the principle reason for dismissal, it would be fatal to the fairness of the dismissal if any significant charge were found to have been taken into account without reasonable grounds; see Smith v City of Glasgow DC (1987) IRLR 326. In that case, an employee was dismissed for unsatisfactory performance of his duties. Three main allegations were relied on cumulatively when reaching the decision to dismiss. One of those was not established. The tribunal nevertheless held the dismissal to be fair. The employees appeal was allowed. Giving the leading speech in the House of Lords, Lord Mackay said - “To accept as a reasonably sufficient reason for dismissal a reason which, at least, in respect of an important part was neither established in fact nor believed to be true on reasonable grounds is, in my opinion, an error of law. The industrial tribunal fell into this error in this case”36. If, however, each charge stood on its own, for example independent instances of gross misconduct, such that the employer would have dismissed for any of them without the other, then they would require separate consideration in determining whether it was reasonable to dismiss.37. Take an example. Suppose that an employer dismissed an employee for two charges of theft, committed on different occasions and each independently considered by the employer to amount to gross misconduct. The tribunal would have to consider each separately. It might be reasonable (applying section 98(4)) to dismiss for one of the charges of theft even if it was not reasonable to dismiss for the other (if for example one had been properly investigated but not the other).38. In this case, the tribunal has not expressly said whether it found the charges to have been put forward by BHL as cumulative or independent instances of gross misconduct but it is plain from the tribunal’s reasons that BHL’s case was put forward on the basis that there were independent instances of gross misconduct, each meriting dismissal …… we have no doubt having read the letter of dismissal and listened to the parties explaining what happened when Ms Garner was recalled, that this was the approach that Ms Garner took.39. This being so, we do not think the tribunal can be criticised for looking at the charges individually and making what were, in essence, independent findings about each charge. This is the way in which BHL itself approached the case. Section 98(4) requires a tribunal to start with the employer’s reason for dismissal not to construct reasoning of its own. Indeed, as we have seen for the Glasgow case, if BHL’s reasoning had been cumulative, it would have been fatal to its case if any significant charge had failed the section 98(4) test.”[110]The respondent submits that, on the case before Mrs Pearce and that which the claimant had been called upon to answer, being the single case of leaving the service unstaffed and therefore putting a vulnerable adult at risk, Mrs Pearce had made a specific finding thereon amounting to gross misconduct and was a separate finding to that of “threatening behaviour towards a colleague,” and as Mrs Pearce advanced in evidence before the tribunal, was the offence for which she had determined that trust in the claimant had been broken, and that were the circumstances to repeat itself, she could not guarantee that the claimant would act differently, and for which dismissal was then the appropriate sanction. The determination as to threatening behaviour towards a colleague, did not then affect the reason for dismissal, this being an additional charge of gross misconduct.[111]On the evidence before the tribunal, I find that the allegations of gross misconduct, although both being found against the claimant by Mrs Pearce, and referred to in imposing her sanction, in giving consideration to the tribunal’s determination of the reasonableness of sanction pursuant to section 98(4) of the Employment Rights Act 1996, I find that the claimant’s dismissal was a sanction within the reasonable bands of sanctions available to the respondent, the imposition for which, on the claimant leaving the service unstaffed and thereby putting a vulnerable adult at risk, was one that this tribunal cannot say that a reasonable employer would not have imposed, in such circumstance. I further find that, for the reasoning presented by Mrs Pearce that, she had not imposed the sanction of dismissal for the cumulative effects of the allegations, being; threatening behaviour towards a colleague, and leaving the service unstaffed, thereby putting a vulnerable adult at risk, but had imposed the sanction of dismissal for the specific act of leaving the service unstaffed, and therefore putting a vulnerable adult at risk, for which Mrs Peace then had lost confidence in the claimant that, in similar circumstance, the claimant would not act in a similar way, I am satisfied that the sanction of dismissal was imposed for that single allegation of “leaving the service unstaffed, thereby putting a vulnerable adult at risk” and that the sanction of dismissal was reasonable in all the circumstances of this case.[112]With regards the unfairness of Mrs Pearce, in determining the second allegation of threatening behaviour towards a colleague, where such an offence had not been identified as a complaint for the claimant to defend, and indeed had specifically been excluded by Mr Ncube’s investigation, I do not find this to have been of such magnitude in the circumstances of this case to affect the reasonableness of the sanction for the single offence of leaving the service unstaffed, and therefore putting a vulnerable adult at risk, for which Mrs Peace then had lost confidence in the claimant.[113]On the tribunal having found that the claimant had on reasonable grounds been dismissed by the decision of Mrs Pearce, on the claimant having presented her appeal, and of which the claimant has not identified any failings; the claimant having been afforded a full opportunity to re-state her case, the tribunal has not found any failings therein that would affect the decision of Mrs Pearce in dismissing the claimant for reasons of gross misconduct.[114]The tribunal accordingly finds that the claimant has not been unfairly dismissed.[115]The claimant’s claims are accordingly dismissed.