- MS K WILLIS ( CLAIMANT’S DAUGHTER) FOR THE v Respondent — 2021

The claimant, a Support Care Worker at Portsmouth City Council’s Henderson Road Centre, was dismissed following allegations arising from an incident on 3 October 2018 involving service user GO. The respondent investigated allegations that she had used physical interventions and an aggressive tone, breached the Violence Incident Reporting Policy and the Code of Conduct, and committed gross misconduct. The claimant did not give oral evidence because of a stroke in November 2018, but the tribunal accepted that this did not materially prejudice her in the circumstances because the issue before the tribunal was whether the dismissal decision was reasonably open to the respondent on the evidence available at the time.

A week after the hearing had ended, the claimant’s daughter sought to amend the claim to add discrimination/harassment and disability discrimination. The tribunal refused that application because the case had effectively concluded, the new allegations would have required the respondent to answer fresh factual and legal issues, and they could not be determined on the existing evidence. The tribunal therefore decided only the unfair dismissal claim.

Applying section 98(2) Employment Rights Act 1996, the tribunal accepted that the respondent genuinely believed the claimant had committed misconduct and had a potentially fair reason for dismissal. It then considered the Burchell questions and the range of reasonable responses. The tribunal held that the investigation was reasonable, that it was entitled to rely on the accounts of the witnesses despite the claimant’s criticisms of inconsistencies and alleged animosity, and that the inconsistencies identified were not so fundamental as to make reliance on the evidence irrational.

The tribunal also held that dismissal was within the range of reasonable sanctions. It noted that the panel had treated the conduct as physical abuse, that the claimant had long service and should have understood the seriousness of the conduct if the allegations were made out, and that the claimant maintained she had done nothing wrong, leaving little mitigation. The unfair dismissal claim was therefore dismissed.