Ms M Oyeleye v Spencer and Arlington Limited — 2024

Ms M Oyeleye worked for Spencer & Arlington Limited as a support worker providing one-to-one care, including personal care, for a vulnerable non-verbal client referred to as SH. The tribunal found that the respondent had reasonable Code of Conduct and Safeguarding policies, that the claimant had completed relevant training on reporting incidents and safeguarding, and that she understood the requirement to report concerns immediately. The claimant accepted that she was aware of the burn injury to SH on 17 November 2022 and that she did not tell her manager about it at the time she saw the manager on site.

The tribunal found that the injury was significant and that SH later required hospital treatment and follow-up appointments. It accepted that the claimant recorded the injury in the daily log and handed over to a colleague, but found that she did not fully report the matter to management immediately as required by the respondent’s zero-tolerance reporting policy. It preferred the evidence of the disciplinary and appeal managers to the extent that they were supported by the contemporaneous documents, and found that the claimant’s appeal email was misleading in suggesting that she had informed a doctor or sought GP advice when those matters had in fact been handled by other staff or were historical advice.

Applying section 98(4) ERA 1996 and the Burchell approach, together with the band of reasonable responses identified in Iceland Frozen Foods, the tribunal held that the dismissal was for conduct, that the respondent had a genuine and reasonable belief in misconduct after a reasonable investigation, and that dismissal fell within the range of reasonable responses. It also rejected the wrongful dismissal claim, finding that the claimant’s failure to report the injury immediately was a fundamental breach of contract amounting to gross misconduct and entitling the respondent to dismiss without notice.

The holiday pay complaint was also dismissed. The tribunal found that the leave year ran from 1 April to 31 March, that 24 days of holiday had accrued by the termination date of 9 February 2023, and that the claimant had taken 24 days of leave in that year. It therefore concluded that she had received the holiday pay to which she was entitled and there was no outstanding entitlement.