Ms J Kantova v Tree Vale Limited — 2022

Ms J Kantova was employed by Tree Vale Limited as a Senior/Night Care Supervisor at a residential care home. The dismissal arose from an incident on 1 March 2021 involving a 74-year-old resident with Alzheimer’s disease who was wearing the claimant’s coat. The tribunal accepted the respondent’s evidence that the claimant shouted at the resident, tried to remove the coat by force, and then tried to retrieve items from his hand, and it also accepted that the claimant admitted misconduct during the disciplinary process.

The tribunal applied the section 98(4) ERA 1996 fairness test and the Burchell approach to misconduct dismissals. It found the respondent genuinely believed the claimant had committed misconduct, had reasonable grounds for that belief from witness evidence and the claimant’s admissions, and carried out an investigation that was sufficient in the circumstances, particularly given the small size of the business and the limited factual dispute.

The tribunal did identify shortcomings in the procedure before the first disciplinary meeting: the claimant was not given the witness statements or other relevant documents in advance and there was no separate investigatory meeting. However, it held that these defects were cured by the appeal process, where the claimant had the documents, could respond, and could advance mitigation. The tribunal also found that the claimant was told of her right to appeal at the meeting, although that was not recorded in the notes.

On sanction, the tribunal concluded that dismissal for gross misconduct was within the band of reasonable responses. It placed weight on the resident’s vulnerability, the need to report the incident to safeguarding and other authorities, and the respondent’s need to decide whether it could trust the claimant to continue in her role. The unfair dismissal claim was therefore dismissed and no monetary award was made.