Mr J West (solicitor) For the v Respondent — 2020

The claimant was employed as a support worker from 3 September 2014 until her dismissal on 22 July 2019. The complaint arose from an incident on 26 May 2019 in which she left service user S in the sensory room with the door shut. S could not open the door himself, had epilepsy, profound learning difficulties and cerebral palsy, and the respondent’s documents described him as requiring constant monitoring. The tribunal found that the claimant knew S had epilepsy and accepted that he could have a seizure at any time which could put his life in danger.

The respondent investigated the allegation, suspended the claimant on 31 May 2019, and held disciplinary hearings on 28 June 2019 and 22 July 2019. The tribunal found that the respondent had before it the claimant’s admissions, the support plan and risk assessment, and evidence from the investigation, including the fact that no monitor or sensor was in the sensory room. Although the claimant said she had asked S whether he wanted the door closed and relied on the principle of empowerment, the tribunal found that the respondent was entitled to treat safety as taking priority under its safeguarding policy and to conclude that the documents required constant support and monitoring.

On unfair dismissal, the tribunal applied the British Home Stores v Burchell approach and section 98(4) of the Employment Rights Act 1996. It found that the respondent genuinely believed the claimant was guilty of misconduct, had reasonable grounds for that belief, and had carried out as much investigation as was reasonable in the circumstances. It further held that treating the conduct as gross misconduct and deciding on dismissal, rather than a lesser sanction, was within the range of reasonable responses. The claimant’s unfair dismissal complaint was therefore dismissed.

On wrongful dismissal, the tribunal applied the separate contractual test for summary dismissal and considered whether the claimant actually committed the misconduct and whether it was sufficiently serious to justify dismissal without notice. It found that she did leave S alone in the sensory room with the door shut, that S was distressed for about half an hour, and that the conduct put him at risk of serious harm. Taking into account the policy, the support plan, the risk of SUDEP, and the claimant’s failure to accept wrongdoing, the tribunal held that the conduct was a repudiatory breach undermining trust and confidence. The wrongful dismissal complaint in respect of notice was therefore also dismissed.