Claimant v Respondent — 2019

J was a registered care home manager for K. After complaints emerged in autumn 2018 about her treatment of staff, her handling of the discharge of a young person identified as YP2, the treatment of YP1, and the accuracy of the staffing rota before annual leave, K suspended her, investigated, held a disciplinary hearing on 3 January 2019 and dismissed her summarily. An appeal was heard on 1 March 2019 and then reheard on 26 March 2019. The tribunal found the reason for dismissal was conduct, not a conspiracy to replace J with her former deputy MB.

The unfair dismissal claim succeeded because the process was procedurally unfair. The tribunal held that the main bullying allegation was framed too vaguely, the investigation report was served only two days before the first disciplinary hearing, the notes of the 20 November 2018 investigatory meeting were difficult to read, and the claimant was not given a fair opportunity to respond to all of the material gathered after that meeting. The tribunal also found that the claimant's fit note and request for more time were not properly accommodated and that the respondent pressed ahead without giving proper weight to her length of service and clean disciplinary record. The appeal/rehearing did not cure those defects: the tribunal considered the appeal officer's approach was not sufficiently open-minded and that new evidence was used without giving J a proper chance to comment.

On the substance, the tribunal found that J had not bullied staff in the legal sense, but she had been unprofessional and blameworthy in a number of respects. In relation to YP2, the tribunal found she knew the proper procedure for removal from the home had not been followed, told staff not to let YP2 back in, and then instructed that YP2 be woken and removed after the police returned her. In relation to YP1, the tribunal found she instructed staff to use unsuitable behaviour-management measures, including making YP1 eat separately and locking the kitchen door. The rota issue was treated as lower-level misconduct, and the tribunal found the claimant had tried to present the rota as fully covered when it was not.

The tribunal held that wrongful dismissal failed because the conduct in relation to YP1 and YP2 amounted to gross misconduct and a repudiatory breach of contract, although allegations 1 and 4 on their own would not have reached that threshold. No final monetary award was made at liability stage. The judge indicated that any compensatory award would be subject to a 60% Polkey reduction and a 75% reduction for contributory conduct, with the basic award to be determined at the remedy hearing.