Miss Cheryl Coutts v Silverburn Care Limited — 2024

Miss Cheryl Coutts worked as a support worker at Silverburn Care Ltd. The tribunal found that on 12 April 2022 CCTV showed her pushing a resident back from the doorway of the home and then shouting at her. It found that no physical force was permitted in relation to that resident, that the claimant knew this from her training and experience, and that her actions amounted to an assault. Mr Rishi Sujeewon genuinely believed she was guilty of gross misconduct and had reasonable grounds for that belief, so the respondent proved a potentially fair reason for dismissal under s.98(2)(b) ERA 1996.

The unfair dismissal claim succeeded because the process was not fair under s.98(4) ERA 1996. The tribunal found there was no proper disciplinary investigation involving the claimant, no written allegations, no disciplinary meeting, no disclosure of the CCTV or witness statements, and no opportunity to be accompanied. It also found that Mrs Marie Lakin's appeal handling did not properly investigate four of the five appeal grounds and that the respondent's appeal process was not carried out objectively. Applying the Burchell approach, the Acas Code, and the band of reasonable responses, the tribunal held the dismissal fell outside the range of reasonable responses.

The wrongful dismissal claim failed. Although the claimant's contractual notice entitlement was three weeks, the tribunal held that statute gave her four weeks' notice, but that her conduct on 12 April 2022 was repudiatory and entitled the respondent to summarily dismiss her without notice. The claimant had also withdrawn claims for statutory redundancy payment, holiday pay, arrears of pay and other payments, which were dismissed upon withdrawal under rule 52. Remedy was left for a later hearing: reinstatement or re-engagement was not decided, and the tribunal said it would then consider whether to impose a financial penalty under s.12A Employment Tribunals Act 1996. No final monetary award was made in this judgment, although the tribunal indicated that any basic award or compensatory award would be reduced to nil in principle because of the claimant's conduct, contributory conduct, and Polkey, with the compensatory reduction running from 3 May 2022.