Ms L Young v Represented by: Ms S Berry – Solicitor FTS Care Ltd — 2023

Ms L Young and Ms A McGhee were residential childcare workers at Elmbank, Denny. The respondent dismissed both in May 2022 after concerns arose about medication records for a young person. The first claimant was accused of altering the Nightly Medication Checks sheet and removing two lamotrigine tablets from the premises to make the medication count balance. The second claimant was accused of altering the MARS and Nightly Medication Checks sheets to cover up the error. Both denied misconduct and both brought unfair dismissal claims under section 98 of the Employment Rights Act 1996.

The tribunal found that the respondent carried out a sufficient investigation and that, viewed overall, the procedure was fair. It accepted that the first claimant had no contractual right to bring a friend to the investigatory meeting, because the respondent's procedure limited accompaniment at that stage to a colleague or trade union representative or official. It accepted that the second claimant's initial discussion on 4 March 2022 was in substance an investigatory meeting and should have been notified as such, but held that this procedural defect did not make the dismissal unfair in the round. By the time of the disciplinary hearings on 9 May 2022, both claimants had the relevant records and witness statements, were accompanied by Frances Pollock, and had the chance to present their cases. Both then appealed, with the appeals and grievance appeals heard by an external consultant or other independent person.

On the merits, the tribunal accepted that Mr Scott genuinely believed both claimants had committed misconduct. For Ms Young, it relied on Ms Wilson's account, the call logs, the altered medication records, and evidence that a sleeve of tablets had been snipped. It held that the respondent had reasonable grounds to believe she had altered records and removed tablets, even though Ms Young denied doing so and said she had only corrected what she thought were errors. For Ms McGhee, the tribunal accepted the respondent's view that her Tippex changes to the MARS and Nightly Medication Checks were consistent with an attempted cover-up rather than an innocent correction. The tribunal rejected the suggestion that the dismissals were a pretext for cost cutting and held that the alleged inconsistency with Ms Wilson's treatment did not assist the claimants because the circumstances were not truly parallel.

Applying the Burchell approach and the band of reasonable responses test, the tribunal held that dismissal was within the range of reasonable responses in a regulated care setting where medication accuracy was important for the safety of a vulnerable young person. It therefore found that neither claimant was unfairly dismissed under section 98 of the 1996 Act.