Mr A Hussein v Maria Mallaband 16 Limited — 2019

Mr Hussein was employed by Maria Mallaband 16 Limited as a bank registered general nurse in a care home for elderly residents, many with dementia. He was dismissed on 27 December 2018 after a resident, CH, complained that a male member of staff had been rough with her, had attended to her personal care alone, and had failed to speak to her. The tribunal heard evidence from the claimant, the respondent's HR witnesses, and found that, where credibility mattered, the respondent's witnesses were not persuasive, whereas Mr Hussein was a credible witness who made concessions about his own record keeping.

The tribunal held that the respondent did not satisfy the Burchell test. It found the investigation inadequate because the respondent did not properly address inconsistencies in CH's account, including the CQC referral that referred to a second possible perpetrator, and did not properly investigate that second person. It also found that the respondent had wrongly told the claimant that CH had specifically named him, did not properly pursue why he missed the second investigatory meeting, and failed to ask relevant staff direct questions about what they had done or observed on the night in question. The tribunal also said the respondent did not properly consider CH's medical history or medication, which might have affected reliability.

On reasonable grounds, the tribunal held that the respondent did not have a sufficient basis to believe that Mr Hussein had committed the misconduct alleged. It considered that CH's account had material inconsistencies, including the reference to intimate personal care and a female staff member in the CQC form, when the evidence pointed away from Mr Hussein doing personal care. The tribunal also said the respondent treated the claimant's note that CH had been repositioned inconsistently: it relied on that note as corroboration, but also rejected the claimant's explanation that he had recorded assumed information rather than matters he had personally witnessed. The tribunal further found that if the respondent had intended to rely separately on record-keeping, that would not have justified dismissal on the evidence before it, particularly because similar note-taking practices appeared to have been used by other nurses.

The tribunal held that the procedure was also deficient because there had been no proper investigation stage and the respondent moved to discipline without making sufficient enquiry into why the claimant had not attended the re-arranged meeting. It found the reason for dismissal was not clear from the dismissal letter. Polkey did not assist the respondent because the investigation failures made all the difference to the outcome. The tribunal did, however, find contributory conduct: Mr Hussein had contributed to his dismissal by making an inaccurate note about repositioning, and any award would be reduced by 20%. No monetary remedy figure was set out in this judgment.