Ms J Davis v Governors of Dean Orphanage & Cauvins Trust: 8001582/2024
JUDGMENT
The judgment of the Tribunal is that the claimant’s complaint of unfair dismissal does not succeed and is dismissed.REASONS
[1]The claimant presented a complaint of unfair dismissal, which the respondent resisted. The respondent’s position was that the claimant was fairly dismissed for gross misconduct.[2]The parties lodged a joint bundle of productions, extending to 239 pages. A further 7 pages were added to this at the commencement of the hearing.[3]The respondent led evidence from the following individuals: 3.1. Lianne Thomson (LT), Housing & Community Service Manager; 3.2. George Jose (GJ), Corporate Services Manager; and 3.3. Gary Dewar (GD), Chief Executive Officer.[4]The claimant gave evidence on her own behalf at the final hearing. Issues to be determined[5]The only issues before the Tribunal were whether the claimant was unfairly dismissed by the respondent and, if so, what compensation should be awarded. Findings in fact[6]This Judgment does not seek to address every point about which the parties have disagreed. It only deals with the points which are relevant to the issues which the Tribunal must consider in order to decide if the claim succeeds or fails. If a particular point is not mentioned, it does not mean that it has been overlooked, it simply means that it is not relevant to the issues to be determined. The relevant facts, which the Tribunal found to be admitted or proven, are set out below.[7]The respondent provides support and housing to vulnerable and care experienced children, young people and families in Edinburgh and the Lothians. This includes a residence at Portland Street, which houses 5 young people.[8]Portland Street is not a secure facility, so residents are not required to remain in the premises. The times they go in and out of the premises do however require to be logged by staff. Unless alternative arrangements had been agreed, residents are expected to comply with the curfew, which operates from midnight on Sunday to Thursday, and 1am on Friday and Saturday. Residents are expected to be in their own bedroom by curfew time, and remain there until morning.[9]The claimant commenced employment with the respondent, as Residential Worker, on 15 December 2014. In October 2023, she moved to being a Night Awake Worker at the respondent’s Portland Street residence. In that role, the claimant generally worked 10-hour shifts (10pm to 8am), three nights per week.[10]As a Night Awake Worker, the claimant was responsible for the supervision, safety and care of the young people at Portland Street during the night. She was provided with written instructions regarding her role. These confirmed that it was expected that she remain awake and be available downstairs from after the shift changeover until 7.30am. The instructions also indicated that, whilst she worked alone in her role, she could awaken the ‘sleep-in’ member of staff, or make contact with on-call management team, if needed – for example if there was an incident or emergency, or she became unwell. Part of her role was to ensure that the house was secure, and all residents were accounted for. There is a CCTV camera at the front door of Portland Street, which is linked to the mobile phone held by the Night Awake Worker. Any movement on the front step of the building triggers an alert to the mobile phone held by the Night Awake Worker. The phone then displays, and logs, a still image of the activity. The written instructions provided to the claimant indicated that it was ‘night staffs responsibility to check [the mobile phone regarding the CCTV activity] regularly, to make sure the house is secure and that young people are accounted for.’[11]Around 7 June 2024, a new young person (YP) moved into Portland Street. He had come directly from a secure facility, with a history criminal activity. He was deemed to be vulnerable, and at risk of physical and emotional harm in the community. He was subject to a Compulsory Supervision Order. This meant that there were additional requirements on the respondent in relation to him, as there required to be an account of where he was at all times, failing which the police and social work required to be informed. A risk assessment had been completed in relation to YP which indicated that he was at high risk of going missing from his placement. Members of staff at Portland Street, including the claimant, were informed of this, and reminded that protocols required to be followed if this occurred, including contacting the police and social work.[12]On 25 June 2024, a report was made to GD that YP’s whereabouts had been unaccounted for, for around 6 hours, prior to 9.30am that morning. Staff had not been aware that YP was not within the premises from 3.30am onwards. In addition, GD was informed that the claimant had been found asleep at around 7.30am that morning, while on duty. He instructed that an investigation be conducted into these issues.[13]The claimant was suspended with effect from 27 June 2024, pending the outcome of the investigation.[14]LT was appointed to conduct the investigation. In the course of her investigation, she took the following steps: 14.1. LT asked the Team Leader to prepare a timeline of his involvement, and then interviewed him on 28 June 2024. He stated that he had arrived for work at 9am on 25 June 2024. Prior to that he had received a call about YP being missing and had instructed that police and social work be informed. He was present when YP returned to Portland Street at around 9.30am. 14.2. LT asked the Senior Practitioner to prepare a timeline of her involvement, and then interviewed her on 2 July 2024. She stated that she had been on late shift on 24 June 2024, early shift on 25 June 2024 and Sleep-In shift in between. She went to bed around 11.30pm on 24 June 2024. When she woke up the following morning, at around 7.30am, she expected to find the claimant in/around the office (which was on the first floor, next to the sleep-in room), but did not. She went downstairs to find the living room in darkness, the blinds still closed and the claimant asleep on the sofa. She woke the claimant up. They then went up to the office and discussed what had happened the previous night. The claimant explained that YP had gone out for a cigarette at around 3.30am. When the claimant was completing the in/out book however, with reference to the CCTV, she noticed from the CCTV footage that YP had not returned after going out. They went together to check YP’s bedroom at 7.55am, and ascertained that he was not there. They phoned the Team Leader who instructed them to call the police and Emergency Social Work. They did so and also made attempts to contact YP. While they were unable to do so initially, YP answered his phone at around 9.00am and indicated he would be back in 20 minutes. He arrived back at 9.35am. 14.3. LT interviewed the claimant on 2 July 2024. The claimant stated that at around 4am she heard either the door or a notification from the security camera. She messaged YP to ask where he was going. He responded that he was going out for a cigarette. She then went to the bathroom. When she was back in the hall, she noticed the front door was shut. She assumed from this that YP had returned and gone to bed. She carried on with her work. She stated that she had felt unwell and that at around 6am had curled up on the sofa and must have nodded off. When she went upstairs to the office, she looked at the CCTV footage and noticed that YP had not come back in. She then phoned the police to make a missing person report. 14.4. LT reviewed the security camera footage, which showed YP leaving Portland Street at 03:24, rather than simply having a cigarette at the front door. 14.5. LT reviewed the mobile phone which had been used by the claimant on the morning of 25 June 2024. There were no text messages on the phone between the claimant and YP at/around 3.24am, or after that, as the claimant had asserted. The last text message from the claimant to YP had been at 11.05pm on 24 June 2024. 14.6. LT reviewed the call logs for the respondent’s landline telephone and the mobile phone which had been used by the claimant on the morning of 25 June 2024. These did not disclose calls between the claimant and YP at/around 3.34am, or after that. 14.7. She reviewed the records completed by the claimant in relation to the events of the morning of 25 June 2024. She noted that these were not completed by the claimant in relation to any events after 2am, so did not assist in her investigation. 14.8. She then completed an investigation report regarding her findings, appended the witness statements and documentation she had gathered and provided this to JG. In her report, dated 2 July 2024, she recommended that formal action be taken and suggested a range of outcomes, up to summary dismissal.[15]By letter dated 2 July 2024, the claimant was invited to a disciplinary hearing on 4 July 2024. She was informed that the purpose of the disciplinary hearing was to discuss allegations that she had: 15.1. Not fulfilled her job description, which states that she is responsible for the supervision, safety and care of young people during the night, which led her to not noticing that YP had not returned after telling her that he was going out for a cigarette. This placed him at risk of physical or emotional harm and is in breach of his Compulsory Supervision Order; and 15.2. Slept while on a waking shift, so not been alert and responsive to young people’s needs or the safety of the building. Therefore, placing yourself, staff and young people at unnecessary risk.[16]She was informed that, if substantiated, the allegations may amount to gross misconduct and could lead to the termination of her employment, without notice or pay in lieu of notice. She was provided with the documents to be referred to at the disciplinary hearing, including the witness statements (which incorporated timelines prepared).[17]The disciplinary hearing ultimately took place on 23 July 2024. It was chaired by GJ, who was accompanied by a colleague/note taker. The claimant was accompanied by a colleague.[18]At the disciplinary hearing the claimant was informed that there were no text messages on the mobile where the claimant asked YP where he was going, or him responded that he was going out for a cigarette. The claimant asked if the WhatsApp messages could be checked instead. She stated that she had felt unwell that evening, but didn’t wake the sleep-in staff, as she thought she would be able to manage to 8am.[19]After the disciplinary hearing GJ checked the WhatsApp messages on the mobile phone, but there were no messages between the claimant and YP on the morning in question.[20]GJ adjourned the hearing to deliberate. He concluded that the claimant had not spoken to YP when he left the premises (there was not evidence of any messages between YP and the claimant, as she had asserted, which she could not explain) and had not checked to ensure that he had returned (which she accepted). This placed YP at risk of physical or emotional harm and was a breach of his Compulsory Supervision Order. GJ felt that, had YP been involved in criminal activity, or come to some harm personally, this would have exposed the respondent to significant reputational damage, given that he was subject to a Compulsory Supervision Order and the respondent was unaware of his whereabouts. He also concluded, which the claimant accepted, that she had slept while on a waking night shift, so was not alert and responsive to the needs of the residents and safety of the building, placing herself, residents and staff at unnecessary risk. Whilst he took into account the claimant’s explanation that she had felt unwell during her shift, he noted that there were clear protocols in place in relation to this, which the claimant was aware of: the claimant should have woken the sleep-in member of staff, or alerted the on-call manager, but failed to do so. He concluded that the claimant’s conduct amounted to gross misconduct, and that the claimant could not continue in her role as a Night Awake Worker. He had no confidence in her ability to work on her own at night going forward, and to follow the protocols when doing so. He determined that she should be summarily dismissed from her role as Night Awake Worker, as a result. As an alternative however, taking into account the mitigating circumstances, her length of service and good disciplinary record, he concluded that the claimant could instead be given a final written warning and an alternative position on day shift, where the risks of similar issues arising were mitigated, due to presence of supervision/management on day shifts.[21]The claimant was informed of GJ’s decision by letter dated 31 July 2024. She was informed the alternative offer was open for acceptance until 5 August 2024, failing which her summarily dismissal would be confirmed. She was informed of her right to appeal.[22]There was some discussion between the parties about the alternative proposed. Ultimately, the claimant concluded that she could not accept this, as she would require to work to a rota and the days she required to have off each week, for a college course she was undertaking, could not be guaranteed. By letter dated 7 August 2024, the respondent confirmed that the claimant’s employment was summarily terminated, with effect from that date. She was advised, again, of her right to appeal.[23]The claimant appealed against the decision to terminate her employment by letter dated 12 August 2024.[24]The appeal hearing took place on 20 August 2024. It was chaired by GD. A note taker was also present. The claimant was accompanied by a colleague.[25]GD did not uphold the claimant’s appeal and confirmed his findings in a letter to the claimant dated 26 August 2024.[26]In accordance with their obligations to do so, the respondent made a report to the Scottish Social Services Council (SSSC). On 6 February 2025, they wrote to the claimant to confirm that they had completed their investigation and determined that her fitness to practice is not currently impaired, and they did not intend to take any further action. Submissions[27]Mr Benjamin, for the respondent, submitted, in summary, that the respondent had conducted a thorough investigation, and dismissal on the grounds of gross misconduct was one of the responses open to them in the circumstances. They acted fairly and reasonably in doing so, seeking to explore alternatives prior to confirming their decision. In the alternative, he submitted that any compensation awarded should be reduced for contribution and having regard to the Polkey case.[28]Mr Stevenson, for the claimant, submitted, in summary, that the claimant does not take issue with the procedure adopted. Her position is that her dismissal was substantively unfair. It was reasonable for the claimant to assume that YP had returned to his bedroom on the morning in question. It was not appropriate for her to enter his bedroom, during the course of the night, to check. She cannot be held responsible for the supervision, safety and care of young people when they are not on the premises. The premises are not secure, and young people can and do leave. She can only rely on others (the police/social work) to try and trace and individual if they leave. In relation to the claimant falling asleep, she felt unwell but thought she could ‘soldier on’. Punishing her for doing so is totally unreasonable. The respondent ought to have done more to ensure that the claimant could take up the alternative offered to her. The SSSC conclusions demonstrate that the respondent’s dismissal of the claimant did not fall within the band of reasonable responses open to them in the circumstances.Relevant Law
[29]S94 ERA provides that an employee has the right not to be unfairly dismissed.[30]In cases where the fact of dismissal is admitted, as it is in the present case, the first task of the Tribunal is to consider whether it has been satisfied by the respondent (the burden of proof being upon them in this regard) as to the reason for the dismissal and that it is a potentially fair reason falling within s98(1) or (2) ERA.[31]If the Tribunal is so satisfied, it should proceed to determine whether the dismissal was fair or unfair, applying the test within s98(4) ERA. The determination of that question (having regard to the reason shown by the employer): “(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”[32]Where an employee has been dismissed for misconduct, British Home Stores v Burchell [1978] IRLR 379 sets out the questions to be addressed by the Tribunal when considering reasonableness. They are as follows: 32.1. whether the respondent genuinely believed the individual to be guilty of misconduct; 32.2. whether the respondent had reasonable grounds for believing the individual was guilty of that misconduct; and 32.3. whether, when it formed that belief on those grounds, the respondent had carried out as much investigation as was reasonable in the circumstances.[33]The Tribunal then requires to consider whether the decision to dismiss fell within the range of reasonable responses available to a reasonable employer in the circumstances. In determining this, it is not for the Tribunal to decide whether it would have dismissed for that reason. That would be an error of law as the Tribunal would have ‘substituted its own view’ for that of the employer. Rather, the Tribunal must consider the objective standards of a reasonable employer and bear in mind that there is a range of responses to any given situation available to a reasonable employer. It is only if, applying that objective standard, the decision to dismiss (and the procedure adopted) is found to be outside that range of reasonable responses, that the dismissal should be found to be unfair (Iceland Frozen Foods Limited v Jones [1982] IRLR 439). Discussion & Decision[34]The Tribunal referred to s98(1) ERA. It provides that the respondent must show the reason for the dismissal or, if more than one reason, the principal reason and that it was for one of the potentially fair reasons set out in s98(2). At this stage the Tribunal was not considering the question of reasonableness. The Tribunal had to consider whether the respondent had established a potentially fair reason for dismissal. The Tribunal accepted that the reason for dismissal was the claimant’s conduct – a potentially fair reason under s98(2)(b). No other reason has been asserted.[35]The Tribunal then considered s98(4) ERA. The Tribunal had to determine whether the dismissal was fair or unfair, having regard to the reason as shown by the respondent. The answer to that question depends on whether, in the circumstances (including the size and administrative resources the employer is undertaking), the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the employee. This should be determined in accordance with equity and the substantial merits of the case. The Tribunal was mindful of the guidance given in cases such as Iceland Frozen Foods Limited v Jones that it must not substitute its own decision, as to what the right course to adopt would have been, for that of the respondent. There is a band of reasonableness within which one employer might reasonably dismiss the employee, whereas another would quite reasonably keep the employee on. If no reasonable employer would have dismissed, then dismissal is unfair, but if a reasonable employer might reasonably have dismissed, the dismissal is fair.[36]The Tribunal referred to the case of British Home Stores v Burchell. The Tribunal was mindful that it should not consider whether the claimant had in fact committed the conduct in question, as alleged, but rather whether the respondent genuinely believed he had and whether the respondent had reasonable grounds for that belief, having carried out a reasonable investigation. Did GJ have a genuine belief that the claimant was guilty of misconduct?[37]The Tribunal concluded that GJ did have a genuine belief that the claimant had committed the each of the allegations of misconduct which he held to be substantiated. He was a clear and credible witness. The Tribunal accepted his evidence in relation to this. Did GJ have reasonable grounds for his belief?[38]GJ reached his conclusion that the claimant had committed the misconduct asserted for the reasons set out in paragraph 21 above. The Tribunal concluded that those reasons, which included admissions from the claimant that she had been alerted to YP leaving the building at 3.24am and assumed he had returned, but took no steps to check he had, then fell asleep during her shift, constituted reasonable grounds for that belief.[39]Whilst the claimant asserted that it was not reasonable for her to enter YP’s bedroom in the middle of the night to check if he was there, there were numerous other ways of checking that YP had returned, such as calling/texting him (as she asserted she had done when he left), knocking on his door and speaking to him through the door, and/or checking the CCTV. Was there a reasonable investigation?[40]The Tribunal concluded that the respondent conducted a balanced investigation. The steps that LT took are set out in paragraph 14 above. LT interviewed the claimant and the other two members of staff who were potential witnesses. She gathered all the relevant evidence in relation to the allegations. She prepared a detailed investigation report, which set out the findings of her investigation. She appended notes of the interviews conducted and the documentary evidence gathered to her report. There were no further steps which should, reasonably, have been undertaken during the investigation. Procedure[41]The respondent investigated the allegations against the claimant. They informed her of the allegations and the potential consequences and provided copies of the evidence compiled. The claimant was given the opportunity to respond to the allegations at the disciplinary hearing and was provided with the opportunity to appeal. She was accompanied at the disciplinary & appeal hearings. The respondent followed their internal procedures. The Tribunal found that the procedure adopted by the respondent was fair and reasonable in the circumstances. Did the decision to dismiss fall within the band of reasonable responses?[42]The Tribunal then considered whether the decision to dismiss the claimant, as a result of the identified misconduct, fell within the range of reasonable responses available to a reasonable employer in the circumstances.[43]GJ’s position was that, as a result of the claimant’s established conduct, the respondent had no confidence in her ability to work on her own at night going forward, and to follow the protocols when doing so. The claimant could not therefore continue in her role as a Night Awake Worker, where she worked alone without supervision. Lesser sanctions, where the claimant would be working with a more senior manager, who would be able to actively supervise the claimant, on day shift, were considered and discussed with the claimant, but were not viable. In these circumstances, GJ concluded that the only remaining option was dismissal.[44]It cannot be said that no reasonable employer would have dismissed the claimant in these circumstances. The Tribunal accordingly found that GJ’s conclusion to dismiss the claimant fell within the band of reasonable responses open to the respondent in the circumstances.[45]While it was noted that the claimant relied upon the SSSC’s conclusion, following investigation, that they did not consider the claimant’s fitness to practice to be impaired going forward, that was not the issue to be determined by the Tribunal. The Tribunal required to assess whether the respondent had a reasonable belief that the claimant committed misconduct, whether this was based on reasonable grounds, following reasonable investigation, and whether dismissal fell within the band or range of reasonable responses open the respondent in the circumstances. For the reasons set out above, the Tribunal considers that these points were established. Conclusions re s98(4)[46]For the reasons stated above the Tribunal concluded that the respondent acted reasonably in treating the claimant’s conduct as a sufficient reason for dismissal. The claimant’s dismissal was accordingly fair.