Member E Farrell Tribunal Member M McAllister J Difolco v Represented by S Monan, Solicitor Care UK Community Partnerships Ltd — 2024

The claimant worked as a care assistant at Cairdean Nursing Home from 2 October 2019 until dismissal with effect from 15 November 2022. The tribunal accepted that she had osteoarthritis in her hands by April 2022 and that, from that point, the condition had a substantial and long-term adverse effect on her normal day-to-day activities. It nevertheless rejected the reasonable adjustments complaint because the respondent did not know, and could not reasonably have been expected to know, that she had the disability or that she was likely to be placed at a substantial disadvantage, and because the claimant had arranged for other staff to push the hoist and stand aids into position.

The harassment complaint concerned an allegation that AB grabbed the claimant's chest in late summer 2021. The tribunal held that the complaint was presented out of time, that it was not just and equitable to extend time, and that it therefore had no jurisdiction to hear the harassment claim. It dismissed that complaint without determining the underlying merits.

In October 2022 the claimant was arrested and charged with murder, later appeared in court, and was suspended pending investigation. The respondent's disciplinary process focused initially on her failure to report the arrest and charge, but on appeal the dismissal was upheld on the basis of potential reputational damage from the newspaper report and the claimant's work with vulnerable residents. The tribunal held that dismissal for some other substantial reason based on reputational risk was capable of being fair, but that the process was unfair because the reputational risk and alternatives to dismissal were not properly discussed with the claimant before the dismissal decision was taken.

The unfair dismissal complaint therefore succeeded. The tribunal awarded a basic award of £1,862.97, calculated by reference to the claimant's age, length of service, gross weekly pay and pension contribution. It reduced the compensatory element to nil because, had the reputational issue and alternatives been discussed, the tribunal found the claimant would have been dismissed fairly in any event. No injury to feelings award was made and no ACAS uplift was applied.