Miss K Scudder v Lothlorien Community Limited — 2020

Miss Scudder worked for Lothlorien Community Limited as a waking night support worker at a home for service users with learning disabilities. The claim concerned the respondent's decision to dismiss her following an incident on 3 August 2018 involving a service user in the toilet and the subsequent allegations that she had restrained the service user by the wrists, used inappropriate language, used physical force, rushed the service user out of the bathroom while she was partly dressed, and failed to record the incident. The claimant accepted that there had been an incident and accepted some elements of the respondent's concerns, including that she had brought the service user out of the toilet while not fully dressed and had not written the matter up, but she denied the central allegations of restraint and abuse.

The tribunal held that the reason for dismissal was misconduct. Applying section 98 of the Employment Rights Act 1996, the Burchell test, and the range of reasonable responses approach, it found that the respondent honestly believed the claimant had committed misconduct and had reasonable grounds for that belief after a reasonable investigation. The tribunal accepted that the respondent relied on the accounts of colleagues A, B and C, together with the service user's care plan, daily records and the surrounding circumstances, including the service user's usual ability to use the toilet and dress herself and the fact that the group were due to leave on a day trip.

The tribunal noted shortcomings in the process, including that the disciplinary minutes were not provided to the claimant during the process and that some matters considered in the disciplinary outcome had not been put to her before the disciplinary decision. However, it found that the claimant had a reasonable opportunity to answer the allegations and that those issues were explored on appeal. It also found that the colleague evidence, taken together, supported the conclusion that the claimant had acted as alleged and that the respondent was entitled to prefer that evidence over the claimant's account.

The claim was therefore dismissed. The tribunal added that even if there had been procedural unfairness because of the minutes or the later investigation points, it would have found that the claimant would have been dismissed fairly in any event and that she had contributed substantially to the dismissal. No monetary award was made.