Toyah Leanne Rose v Partnerships In Care — 2019

The claimant was a Healthcare Worker with the respondent from August 2007 until her summary dismissal with effect from 3 January 2019. The claims concerned events on the night of 7/8 November 2018 involving a patient, Ms Y, during restraint and seclusion at Calverton Hill hospital. The tribunal found that the respondent genuinely believed the claimant had engaged in misconduct, but that the disciplinary process began and continued with very limited particulars of the allegations and without the claimant being shown the CCTV footage on which the respondent relied.

The tribunal held that a reasonable investigation required the CCTV footage to be shown to the claimant and that the respondent should also have investigated what Ms Y could have heard outside the seclusion room. It found that the charge letters and hearing process did not clearly identify the factual basis of the allegations, and that this procedural unfairness was itself sufficient to make the dismissal unfair. The tribunal also found that the respondent had not carried out as much investigation as was reasonable in all the circumstances.

On the facts, the tribunal found some misconduct by the claimant, including an inappropriate comment during the restraint, laughing and joking during the incident, and participating in the post-seclusion celebration. However, it found that many of the respondent's allegations were not made out against her, and it placed weight on the fact that Ms Castle, not the claimant, decided to seclude Ms Y and authorised the use of force. Taking the claimant's long service and clear disciplinary record into account, the tribunal concluded that no reasonable employer would have dismissed her for the matters relied on.

The tribunal also found that the claimant had contributed to her dismissal, so that any compensatory and basic awards would be reduced by 25%. It said that if unfairness had been only procedural, it would have assessed a 1 in 3 chance that dismissal would have followed in any event, but it did not apply a Polkey reduction because it found the dismissal substantively unfair as well. The wrongful dismissal claim also succeeded because the conduct relied on did not amount to gross misconduct or a repudiatory breach of contract. Remedy for both claims was left to a further hearing.