Mr C A Nunez Dias v Anchor Hanover Group: 6016104/2024

EMPLOYMENT TRIBUNALS

Case No 6016104/2024

Between

Mr C A Nunez DiasClaimant

Anchor Hanover GroupRespondent

Before

Employment Judge Hallen

In person for claimant

Mr. C. Wright- Counsel for respondent

Date 26 March 2025

JUDGMENT

The Claimant’s claim for unfair dismissal is unfounded and is dismissed.

REASONS

[1]The Claimant was employed as a Team Leader by the Respondent between 2 June 2020 and 11 July 2024, at which time he was dismissed by reason of gross misconduct. The effective date of dismissal was 11 July 2024.

[2]In his Claim Form dated 23 October 2024, he said that he was unfairly dismissed by the Respondent. The Respondent in its Response Form disputed that the Claimant was unfairly dismissed. At the hearing, the Respondent cited that the dismissal was by reason of gross misconduct and that it was a fair dismissal.

[3]The issues for the Tribunal in respect of the claim were firstly to determine what the reason for dismissal was and whether it was by reason of conduct as asserted by the Respondent. Thereafter, the Tribunal had to ascertain whether the Respondent acted reasonably in all the circumstances in dismissing the Claimant and in particular: -(i) Did the Respondent believe that the Claimant had committed the acts of conduct relied on?

(ii) Had the Respondent reasonable grounds for that belief?

(iii) Had the Respondent conducted such investigation as was reasonable in all the circumstances of the case?

(iv) Was dismissal within the range of reasonable responses open to a reasonable employer?

[4]I had an agreed bundle of documents in front of me made up of 166 pages. The Respondent called Ms Laura Yarham, Home Manager at Blackbrook Care Home, (investigation officer), Ms Kerry Healy, Home Manager at Devonshire House, (dismissing officer) and Ms Samantha Willis, Regional Manager, (appeal officer) to give oral evidence at the hearing before me. The Claimant gave evidence and called a witness, Ms Leanne Campbell, Team Leader, to give evidence. All of these witnesses prepared written witness statements and were subject to cross examination. At the end of the hearing, I reserved my judgment and confirmed to the parties that I had to give thought to my decision. In the circumstances, I would write to the parties in due course with the outcome and reasons for it.

Facts

[5]At the outset of this facts part of my judgement, I confirm that I preferred the evidence given to me by the Respondent’s witnesses. I found that their evidence correlated to the contemporaneous documents provided to me and was consistent with it. I found the evidence of the Claimant to be inconsistent with that documentation and also that during the course of the disciplinary process conducted against him he changed his account of events to suit his own purposes. I will refer to this in this section of the judgment where relevant.

[6]The Respondent is a not-for-proﬁt organisation providing housing, care and support to people over 55 years old. The Claimant was employed by the Respondent as a Team Leader at Blackbrook House Care Home (the Home). The Claimant was employed to work 12 hours per week. The Home provides residential care for elderly people and offers specialised services for residents who have dementia or physical disability.

[7]During the evening of 25 April 2024, resident CM had displayed challenging behaviour towards the Respondent’s employees and other residents (shouting and upsetting residents). The resident was an elderly and frail man who would ordinarily use a Zimmer frame. CM had been asked to leave the communal areas of the Home and return to his bedroom. The Claimant completed a Distressed Communication Record (‘DCR’) in respect of CM’s behaviour that evening and his interactions with CM. CM was awaiting an alternative placement due to a previous incident earlier in the month. In the meantime, it had been agreed with CM and his Social Worker that he would retire to his room at 8pm each evening.

[8]On the morning of 26 April 2024, the Home Manager, Lucy Yarham, spoke to CM about the DCR that the Claimant had completed the previous evening. CM became very distressed and informed Ms Yarham that during the previous night “the man doing the pills” (the Claimant) nearly broke his arm. He said he had pushed him out of the communal room and almost broke his arm. Ms Yarham confirmed that this was a serious accusation and that the Police would need to be informed, and an investigation would have to take place.

[9]On 27 April 2024 another resident, HM, told RW, Team Leader, that CM had been awful to staff the other night and said that the Claimant had CM’s arm behind his back and was pushing him down the corridor to CM’s room. HM demonstrated this on RW by putting RW’s arm behind and up towards the middle of her back. HM said no one else was present.

[10]On 30 April 2024 Ms Yarham interviewed HM, and she confirmed what she had told RW. HM said she had been in her bedroom when she heard shouting and so had opened her bedroom door. She said she saw the Claimant holding CM’s arm bent up his back walking very fast. She demonstrated the hold in the same way she had shown RW. She also confirmed she had waited and had seen the Claimant coming back towards her and he had appeared wound up. She said she was certain the Claimant had restrained CM’s movement.

[11]In view of this, on 30 April 2024 the Claimant was suspended. The Claimant was notiﬁed of the contact details for his point of contact and was asked to call once a week. He was also provided with the Respondent’s wellbeing support details. At the hearing before me, the Claimant complained that he was not suspended immediately but that the Respondent waited to 30 April 2024 to suspend him cancelling his overtime shifts. I did not find that there was anything unreasonable about this short delay as the Ms Yarham was still waiting for details of the interview with HM before making the decision to suspend the Claimant. In addition, the Claimant complained that the Respondent did not keep in touch with him during his suspension as it should have done. I found that apart from a short delay in contact with the Claimant at the beginning of his suspension, Ms Yarham did maintain weekly contact with the Claimant as agreed between the two.

[12]On 13 May 2024 during an investigation meeting the Claimant conﬁrmed he had walked CM to his room and confirmed CM did not go willingly. The Claimant said that CM was lashing out and so he took one of his arms and directed him. He said it was not behind CM's back, he just pushed his arm forward directing him out of the communal areas. The Claimant confirmed he had no issues with HM. The investigation meeting was adjourned as the audio became unclear. The investigation was reconvened face to face with Ms Yarham. At the reconvened meeting the Claimant said CM’s behaviour was escalating and he tried to escort him from the room. He said he had his palm under CM’s right upper arm and on his lower back to encourage CM to move. He demonstrated this on Ms Yarham. The Claimant denied using any force. He described CM as walking but not co-operating. He conﬁrmed he walked CM to his room because he was becoming quite violent and conﬁrmed that CM did not go willingly. He said CM was becoming more agitated as they were walking. He conﬁrmed CM did not have his walking frame with him. He also conﬁrmed that he saw HM as they were walking towards CM’s room. He said he did not think HM would lie on purpose but said her account was not factual.

[13]At the hearing before me, the Claimant was adamant that he did not place CM’s arm behind his back and that he was not being forceful with CM in directing the resident back to his room. On balance, I did not accept his evidence. I find that based on the statement taken by the Respondent from CM himself and the corroborating statement taken from HM the other resident that witnessed the incident, the Claimant was being forceful with CM by placing the elderly resident’s arm behind his back and indeed forcing him back to his room. I saw no reason why CM would not be honest in his statement, and this was witnessed by HM as well who also had no reason to be dishonest.

[14]The investigation report was completed on 3 June 2024 and recommended the matter proceed to a disciplinary hearing. On 2 July 2024 Kerry Healy, Home Manager at another of the Respondent’s Care Home’s Devonshire House, wrote to the Claimant to invite him to attend a disciplinary hearing on 11 July 2024 in respect of the following allegations of gross misconduct: that on 25 April 2024 the Claimant neglected his duty, displayed inappropriate behaviour and failed to follow the distressed behaviour guidance bya. Taking hold of CM’s arm and physically restraining him;

b. Making extended physical contact with CM which exacerbated his (CM's) distressed behaviour;

c. Failing to seek Police assistance when CM continued to display aggressive behaviours. The letter enclosed the investigation report and appendices and warned the Claimant that a potential outcome could be his summary dismissal without notice.

[15]The disciplinary hearing took place on 11 July 2024. Ms Healy confirmed that the Claimant’s companion was there for support but that the Claimant would need to answer the questions. She did not say his companion could not talk or ask questions. At the hearing before me, the Claimant said that his companion was prevented from asking questions. I did not find this to be the case. From the notes of the disciplinary meeting itself, I noted that the companion did have some involvement in the disciplinary hearing although she did not ask questions. I accepted the Respondent’s evidence that the companion was not prevented from asking questions if she chose to do so.

[16]During the disciplinary meeting, the Claimant said there was no evidence to support the allegations made against him. Ms Healy pointed out that there was the allegation from CM plus his written account of what had happened to him. There was also evidence from resident HM, who had claimed to have seen the Claimant hold CM’s arm behind his back whilst walking quickly down the corridor. Ms Healy asked if there was a reason HM might lie. The Claimant could not give a satisfactory answer to this question. The Claimant denied physically restraining CM or making extended physical contact with CM. However, he described CM being physically aggressive and described him as not being willing to come with him. Ms Healy asked him to show her how he led CM away. He described himself as having one of his hands open flat on CM’s back and the other open and ﬂat on his arm, above the elbow in case CM swung at him. He had described CM not being willing to cooperate or leave the area and described him as becoming more agitated as they were walking. The Claimant said he had concerns for other residents’ safety. The Claimant accepted he should not have walked CM down the corridor as he did, but felt his actions were justified. He said his actions were aimed at keeping everyone safe.

[17]During the disciplinary hearing, the Claimant had described CM as being “more deﬁant than he had ever seen him before’. The Claimant said that it was clear that CM had not wanted to leave the area, and the Claimant accepted that CM had not gone willingly. Ms Healy asked the Claimant if she had done what the Claimant had done and he had witnessed it, would it have been a concern for him. The Claimant answered, “Yes it would but you do the best you can at the time.” In relation to failing to seek assistance the Claimant said he had not called the Police when CM had continued to display aggressive behaviours as he believed the situation was under control. However, he accepted he should have called the on-call manager or the Police when the situation escalated.

[18]At the disciplinary hearing, the Claimant described CM as displaying distressed behaviour over a three-hour period. However, he did not seek assistance, nor document what had happened sufficiently in the DCR. He did not record CM becoming physical with the Claimant or how he had led CM away in the DCR. The Claimant confirmed that CM used a Zimmer frame to walk as he was at risk of falling. However, the Claimant confirmed in the disciplinary meeting that he did not ensure he had use of this on 25 April 2024.

[19]Ms Healy adjourned the hearing. She considered the evidence and what the Claimant had said and decided to uphold the allegations against him. She concluded that the Claimant had(1) held CM's arm and physically restrained him (this had been witnessed by HM who had no reason to lie); the Claimant’s account of CM's behaviour at this time and lack of willingness to leave the area; and his admittance that he had led/escorted CM away, supported the allegation of him taking hold of CM’s arm and physical restraint; had

(2) made extended physical contact with CM by physically walking him down the corridor which exacerbated CM’s distressed behaviour (the Claimant accepted he led/escorted CM away and that CM became more agitated as he did so); and had

(3) failed to seek Police assistance when CM had continued to display aggressive behaviour. The Claimant deemed CM enough of a threat that he felt he needed to be removed but did not feel it was serious enough to seek assistance from the on-call manager or the Police, or to record the most serious element of CM’s distressed behaviour and how he had dealt with it in the DCR.

[20]Ms Healy considered the appropriate sanction and in view of the seriousness of the Claimant’s actions decided to dismiss the Claimant without notice. Ms Healy reconvened the hearing and conﬁrmed her decision. The Claimant asked if he could be demoted. Ms Healy confirmed she had made her decision, but that he had the right to appeal. At the hearing before me, the Claimant stated that Ms Healy did not consider other penalties open to her other than dismissal for gross misconduct. I find that Ms Healy did consider demotion of the Claimant and a lesser penalty but that due to the seriousness of the charges against the Claimant, dismissal for gross misconduct was the only reasonable penalty that she could impose.

[21]On 18 July 2024, Ms Healy wrote to the Claimant to confirm the outcome and set out his appeal rights. The Claimant asserted at the hearing before me that the outcome of the disciplinary was predetermined as Ms Healy and Ms Yarham were friends. Both of these witnesses confirmed that they were friends outside the workplace but that this fact had no bearing on the outcome of the disciplinary hearing. Indeed, they told me that they did not discuss the outcome of the disciplinary hearing at all. I find that the outcome of the disciplinary hearing was not predetermined because of the friendship of these two employees. Ms Healy made the decision to dismiss the Claimant based on the evidence before her at the disciplinary hearing.

[22]On 23 July 2024 the Claimant appealed against his dismissal on the basis he felt dismissal was disproportionate, that the evidence was not reliable or strong enough to prove the allegations and raised concerns regarding the process. Samantha Wallis, Regional Support Manager, heard the Claimant’s appeal on 6 August 2024. She adjourned the hearing to carry out further investigations in respect of his appeal points, including in relation to HM’s capacity and the reliability of her evidence.

[23]Ms Wallis’ further investigations concluded that HM’s evidence was reliable. Ms Wallis decided to uphold the original decision relating to the first allegation. Ms Wallis overturned the decision relating to the second allegation as she felt there was no time scale for the physical contact presented in the report nor an indication of how CM's distressed behaviour worsened during this time. Ms Wallis upheld the original decision in relation to the third allegation. The Claimant accepted he did not seek assistance as he felt he had the situation under control despite his account that CM continued to display aggressive behaviour. His recording of CM’s distressed behaviour in the DCR was vague and lacked transparency regarding the actions he took. In terms of whether the decision to dismiss was proportionate, Ms Wallis considered the Respondent's clear position that colleagues should never attempt to restrain a resident and concluded that the Claimant’s use of restraint against CM in the circumstances was an act of gross misconduct that warranted summary dismissal. She considered the Claimant’s record and good work history but determined that a Team Leader with experience of training others in the Respondents procedures should not have acted in the way that he did. On 20 August 2024 Ms Wallis wrote to the Claimant to confirm her decision.

[24]At the hearing before me, the Claimant asserted that the disciplinary process took too long to conclude. I noted that the process took three months to complete. However, I did not find that given the complexity of the matters being investigated and the fact that the Claimant’s conduct has initially been reported to the Police (who decided not to continue with the investigation), the period of three months from investigation to appeal was not inordinately or unreasonably long.

Law

[25]Section 98(1) ERA provides that it is for the employer to show the reason or principal reason for dismissal of the employee and that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. If the Respondent fails to do so the dismissal will be unfair.

[26]If the Tribunal decides that the reason for dismissal of the employee is a reason falling within Section 98(1) or (2) ERA it will consider whether the dismissal was fair or unfair within the meaning of Section 98(4) ERA. The burden of proof in considering Section 98(4) is neutral.

[27]Section 98(4) ERA provides:- “the determination of the question whether the dismissal is fair or unfair (having regards to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

[28]In the case of Iceland Frozen Foods Ltd v Jones

[1982] IRLR 439

EAT, guidance was given that the function of the Employment Tribunal was to decide whether in the particular circumstances the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair. If the dismissal falls outside the band, it is unfair.

[29]In the case of Sainsburys Supermarket Ltd v Hitt

[2003] IRLR 23

CA, guidance was given that the band of reasonable responses applies to both the procedures adopted by the employer and the sanction, or penalty of the dismissal.

[30]The Tribunal should not substitute its own factual findings about events giving rise to the dismissal for those of the dismissing officer (London Ambulance NHS Trust v Small

[2009] IRLR 563

[31]In the case of British Home Stores v Burchell

[1978] IRLR 379

EAT, guidance was given that, in a case where an employee is dismissed because the employer suspects or believed that he has committed an act of misconduct, in determining whether the dismissal was unfair, an Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of misconduct in question and obtained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time. This involved three elements. First, there must be established by the employer the fact of that belief, that the employer did believe it. Second, it must be shown that the employer had in its mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage on which he formed that belief on those ground, must have carried out as much investigation into the matter as was reasonable in all of the circumstances of the case. The Tribunal’s Findings

[32]The facts of this case are relatively straightforward and for the most part not in dispute. The Claimant confirmed that he received training and was aware of the Respondent’s Supporting Distressed Communication Policy and Moving and Handling of Residents Policy. Indeed, as Team Leader, he provided training to other staff on such policies. Therefore, he was aware that he was required to respect the resident’s personal space and not to use any form of physical restraint on any other the Respondent’s residents. He was aware of de-escalating processes as outlined in the Respondent’s procedures when he found himself in a difficult position with a resident. He was also aware that that a breach of the policies could lead to disciplinary action and that a serious breach of the policies could lead to dismissal for gross misconduct. Indeed, whilst he disputed the nature of the physical restraint that he applied to resident CM, he did admit invading CM’s personal space and physically restraining CM albeit not in the manner described by CM or HM. I find that Ms Healy and Ms Wallis were entitled to find that the version of events given by CM himself and HM who witnessed the Claimant’s restraint of CM was the more accurate account. CM told Ms Yarham the day after the incident that the Claimant nearly broke his arm.

[33]In relation to the incident on 25 April 2024, the Claimant accepted that it had occurred, but after initially admitting physically restraining CM he sought to row back from his admission and sought to deflect his breach of the procedures by casting blame on CM. He sought to say that CM struck him although in cross examination, he agreed that the contact was not serious and did not hurt him. He also said he was used to such contact from residents and that it did not bother him. After considering the written accounts of CM himself, HM who witnessed the incident and the differing accounts of the incident from the Claimant, I find that it was open to Ms Healy and Ms Wallis to prefer the evidence of CM and HM. These elderly and frail residents had no reason to be dishonest about what had happened to them and what they witnessed.

[34]On the basis of the above factual matrix, I find that the Claimant’s claim for unfair dismissal is unfounded and should be dismissed. In coming to my decision, I have to consider the test as set out section 98 of the Employment Rights Act 1996. I have to consider firstly whether the Respondent dismissed the Claimant for a potentially fair reason. If so, I have to consider, whether the Claimant was dismissed fairly in consequence of that dismissal depending upon the Respondent’s size and administrative resources. In other words, I have to find whether the Claimant’s dismissal was within a band of reasonable responses open to a reasonable employer and was fair in all the circumstances.

[35]The two-stage test set out in section 98 has been clarified by the guidance in Burchell and I have ask more specific questions to ascertain the fairness of the dismissal as follows:(a) Did the Respondent believe that the Claimant was guilty of misconduct?(b) Did the Respondent have in mind reasonable grounds upon which to sustain that belief?(c) Did the Respondent carry out as much investigation as was reasonable in the circumstances?

[36]In respect of the first question namely whether the Respondent had a fair reason for dismissal, I find that the genuine reason for dismissal was the Claimant's conduct. Indeed, the Claimant did not challenge that this was the genuine reason as the Claimant did not say to me that the reason was not misconduct. Furthermore, his admission to the Respondent during the disciplinary process that he was aware of the Respondent’s policies and that during the incident on 25 April that he invaded CM’s personal space and did physically restrain him indicated that he was aware that misconduct was the reason for his dismissal. The Respondent’s Supporting Distressed Communication Policy, among other things, made clear that members of staff should never use “any form of physical restraint.’ It adds that “If in doubt do only what is safe. Never put yourself, residents or visitors in danger. Colleagues need to be able to respond to an escalating situation, seek assistance and know when to withdraw to a place of safety”. The Claimant also knew at the time of the incident that Respondent’s policy required staff to call the police if residents became violent, in accordance with his training. Therefore, I find that the reason for dismissal was conduct in this case.

[37]Moving on to the question of fairness and whether the Respondent had reasonable grounds for believing that the Claimant was guilty of misconduct having carried out as much investigation as was reasonable in the circumstances. I find that in this case, the Respondent undertook a reasonable investigation into the conduct in question and considered the matter at a fairly constituted investigation and disciplinary hearing. The Claimant was suspended on full pay between 30 April 2024 and of this in writing. He was invited to a disciplinary meeting in accordance with the Respondent’s disciplinary procedure by letter dated 2 July 2024 after the Respondent carried out an exhaustive investigation into the alleged misconduct. He was provided with the investigation report completed by the Respondent along with all the statements taken by the Respondent along with the accounts of residents CM and HM. He was notified of his right to be accompanied to the disciplinary meeting.

[38]I find that the Respondent undertook a reasonable and thorough investigation. The Respondent made enquiries of residents who bore witness to the Claimant’s conduct, in addition to the other relevant members of staff who were on shift at the material time. The Claimant relied on a written statement, in addition to what he said at the investigation and disciplinary meeting. The Claimant initially accepted that CM had become violent towards the Claimant by swinging his arms, punching him in the face, and stepping on the Claimant’s toes (though the Claimant did not initially record this in the DCR). CM was said to be “more deﬁant than [the Claimant] had ever seen him before” leaving the Claimant “truly in shock”. The Claimant replied in a “stern manner” which was, itself, contrary to the Respondent’s policies. Yet, the Claimant accepted that he made no attempt to contact the on-call manager or the police, or to move other residents away from the scene. The Claimant initially failed to report that he had put his hands on CM in any way or accurately report the incident at all in the DCR. Indeed, during the investigation meeting on 16 May 2024, the Claimant denied any physical contact between himself and CM when walking CM to his bedroom. The Claimant also asserted that he did not take hold of CM’s arm. He then accepted, however, that he held CM’s right upper arm and lower back. The Claimant also contradicted himself in other ways, for instance: in the meeting of 13 and 16 May 2024, the Claimant stated that he pushed CM’s arm, but also stated CM was “walking on his own, I wasn’t pushing him” even though “CM was resisting to move.”

[39]At the disciplinary hearing, the Claimant was given an opportunity to respond to the allegations against him. In that meeting, the Claimant accepted, among other things, that he needed to keep his hands on CM to prevent him from returning to the Home’s lounge and to prevent CM from hitting the Claimant again. The Claimant maintained his contention that he did not need to call the police or the on- call manager because the situation was not serious enough. I find that the dismissing officer weighed up all of the relevant evidence as well as the Respondent’s own disciplinary procedure which stated that ‘physical or verbal abuse ….or causing harm…..and failure to safeguard customers or to report safeguarding incidents and failure to follow moving and handling guidance’ , whilst working amounted to gross misconduct. She considered the Claimant’s good work record and weighed this against the evidence obtained by the Respondent during the investigation. Ms Heally considered the inconsistent accounts given by the Claimant about his actions in respect of CM on 25 April and his failure to fill in the DCR properly and fully to describe the events of that evening. After doing all of this, she came to the conclusion that the Claimant as an experienced Team Leader should not have taken hold of CM’s arm and physically restrained him and should have called the Police or the on-call manager for further assistance in line with the Respondent’s policies.

[40]After weighing up the evidence, I find that the dismissing officer imposed a penalty that was within the band of reasonable penalties open to her. I am conscious that my job is not to step into the shoes of the employer or substitute my own opinion. Rather it is for me to determine whether based upon the evidence before this employer in respect of this investigation, the employer imposed a penalty that was open to it after considering all of the relevant evidence taking into account the seriousness of the Claimant’s conduct towards CM. In my view, the penalty imposed in this case, which was summary dismissal for gross misconduct fell within that reasonable range. It maybe that other employers may have imposed a final written warning in this case but nonetheless, I find that dismissal for gross misconduct in this case was within the band of reasonable penalties. It was clear to me that the dismissing officer did weigh up the stresses on the Claimant in dealing with CM who was exhibiting challenging behaviour that evening but the Claimant was a senior member of the Respondent’s staff and was aware of the Respondent’s policies and procedures. Indeed, he was responsible for delivering training on them so he should have been better able to deal with the situation that he found himself in without physically restraining HM and causing his so much harm that this elderly resident complained the following day that the Claimant had nearly broken his arm.

[41]The Claimant appealed against the decision to dismiss him for gross misconduct and Ms Wallis handled that appeal. I find that the Claimant was given a fair hearing and permitted to put his grounds of appeal. Indeed, Ms Wallis undertook further investigation with respect to HM’s capacity and found that this resident was capable of recounting what she had witnessed on 25 April with regard to the Claimant’s conduct towards CM and his physical restraint of him. She found that the evidence obtained during the investigation was reliable and that what CM and HM had said about the Claimant’s conduct did amount to a breach of the Respondent’s policies. She found that these residents had no reason to be dishonest in their account of events. Ms Wallis considered that the Claimant had to say and decided that the penalty imposed by Ms Healy was proportionate given the seriousness of the Claimant’s conduct. She found that the Claimant did restrain CM and the Respondent’s policies prohibited such restraint and underpins all of the Respondent’s employee’s dealings with distressed individuals. She found that due to the Claimant’s serious breach of the Supporting Distress Communication Policy, the penalty of gross misconduct imposed by Ms Healy on the Claimant was proportionate.

[42]At his appeal before Ms Wallis, the Claimant referred to the common law right of selfdefence. I find that this was irrelevant to the Respondent’s ﬁnding of gross misconduct against the Claimant because the Claimant could and should have withdrawn from the situation that he found himself in with CM on 25 April 2025 in accordance with the Respondent’s policy or at least adopted other methods to de-escalate the situation. However, I find that the raising of the matter of self-defence, implied that the Claimant imposed force on CM and that he felt justified in doing so. This in itself was a tacit admission by the Claimant that he did indeed take hold of CM’s arm and physically restrain him as found by the Respondent.

[43]The Claimant at the hearing before me and at the appeal meeting raised a number of procedural irregularities in respect of his dismissal. Firstly, he said that the manner in which he was suspended was inappropriate. The Claimant was suspended on 30 April 2024 to allow for a thorough investigation of the serious allegations against him and to ensure that residents were kept safe. This followed HM’s report of the Claimant’s conduct to care home staff on 27 April 2024 and the cancellation of the Claimant’s shifts between 27 April 2024 and 30 April 2024, accordingly. I did not find that the manner of the Claimant's suspension inappropriate or unusual given the further investigation that was taking place.

[44]Secondly, the Claimant said that the investigation/disciplinary process took too long, being from 25 April 2024 to 11 July 2024. I find that the Respondent’s investigation/disciplinary process was thorough and took a proportionate length of time due to the severity of the allegations. The Respondent took advice from its Employment Relations Advice Team, Manager Direct and interviewed those involved. This was to ensure policy compliance and fairness to the Claimant. There was also delay caused by the Police’s investigation into the matter that in the end was not pursued by the Police. I find that the Respondent did not unreasonably delay the disciplinary process.

[45]Thirdly, the Claimant said the Respondent breached his right to conﬁdentiality. The Respondent during the Claimant’s appeal investigated the Claimant’s allegations in relation to an alleged breach of conﬁdentiality and concluded that there had been no such breach by the Respondent. I find that Ms Campbell, the Claimant’s witness, who was allegedly in possession of conﬁdential information, clearly conducted her own research into the circumstances, in conference with the Claimant who presumably instructed her to do so on his behalf. The Claimant had evidently shared information about his disciplinary process, contrary to the terms of his suspension with Ms Campbell. I find that in any event, Ms Campbell and Ms Prosniewska, between whom an inappropriate conversation was alleged to have taken place, were unconnected with the disciplinary process and any alleged conversation that they had had no impact on the outcome of the process.

[46]Fourthly, the Claimant asserted that the disciplinary meeting of 11 July 2024 was not recorded. I find that in accordance with the Respondent’s disciplinary procedure, the Claimant was not entitled to record, or for that matter the Respondent was not permitted to record, the disciplinary meeting by audio or video. I find that this is not unusual for disciplinary meetings. In any event, all of the relevant meetings were recorded in notation format and these were provided to the Claimant before this hearing.

[47]Fifthly, the Claimant stated that at the disciplinary meeting on 11 July 2024 meeting, his companion was not permitted to speak. I find that this contention was not made out on the evidence as the Claimant’s companion who accompanied him was allowed to speak and did do so in the hearing. However, insofar as the companion was asked not to answer questions on the Claimant’s behalf, I found that this was appropriate as she was not permitted to give evidence in accordance with its disciplinary policy.

[48]Finally, the Claimant asserted that Ms Wallis failed to have regard to the Respondent’s safeguarding policy at the appeal meeting. I did not find this to be the case as the Distressed Communication Policy was speciﬁcally considered in the Respondent’s appeal outcome letter dated 20 August 2024.

[49]On the basis of my above findings, I conclude that the Claimant’s claim for unfair dismissal is unfounded and is dismissed.