Mr Carn, FRU Representative For the v Respondent — 2020

The claimant was employed as a care worker from 15 October 2004 until her dismissal on 4 June 2018. The dismissal followed an incident on 2 May 2018 involving service user BC, when the respondent investigated allegations that the claimant had spoken to BC inappropriately, had thrown a duvet over her, and had touched the area around BC's anus in connection with a constipation issue. The tribunal heard evidence from the claimant, Leigh Divey, Natasha Farrell and Samantha Lewis, and the claimant appealed internally before the dismissal was confirmed by Kisha Tancock.

On the automatic unfair dismissal complaint, the tribunal accepted that the statement the claimant made at the disciplinary hearing about BC being on her own overnight and not being incontinent was a protected disclosure within s.43A and s.43B ERA 1996. The tribunal found that the claimant reasonably believed the information was in the public interest and tended to show that BC's health or safety was at risk. However, it held that the dismissal was not because of that disclosure. The reason for dismissal was the claimant's conduct towards BC, not the protected disclosure, so the s.103A claim failed.

On the ordinary unfair dismissal complaint, the tribunal found that the respondent believed the claimant had been guilty of misconduct and that belief was based on reasonable grounds after a reasonable investigation. It accepted that there was evidence the claimant had raised her voice, behaved inappropriately in BC's home, thrown the duvet over BC in an aggressive manner, and felt around BC's anus despite not being medically trained to perform such an act. The tribunal held that dismissal was within the range of reasonable responses under s.98(4) ERA 1996.

The tribunal also rejected the claimant's procedural fairness argument. Although the invitation to the dismissal hearing did not refer to the constipation issue, that issue was in BC's statement and the claimant addressed it in her own written response and at the hearing. The tribunal found that the process, while not particularly slick, gave the claimant advance disclosure of the evidence and an opportunity to answer the allegations at both the disciplinary and appeal stages. Both claims were therefore dismissed.