Member: J Haria Tribunal Member: J Ward Ms. M Sudiye v Represented by: A Stobart - Counsel I Capoulade: Interpreter Oakminster Healthcare Ltd — 2021

The claimant, a care assistant at Oakbridge Care Home, brought claims for unfair dismissal and indirect race discrimination. The tribunal accepted that she was of African descent, a native of the Democratic Republic of Congo, with French as her principal language and English at conversational level, but it found that the respondent did not operate the alleged PCP that employees must communicate in English and in soft, measured and empathetic tones. The indirect race discrimination claim therefore failed.

On the unfair dismissal claim, the respondent relied on gross misconduct arising from allegations made about the claimant's care of resident X on the night shift of 13 to 14 March 2019, including alleged inappropriate speech, refusal of food until blood sugar was checked, failure to provide access to a buzzer, turning off lights, rough continence care, searching for and removing cigarettes, and refusing water. The tribunal found that the respondent believed the claimant had committed misconduct, but it did not have reasonable grounds for that belief because the investigation was not reasonable in all the circumstances.

The tribunal criticised the investigation for not clarifying the dates and specifics of the brother's complaint, for not interviewing the staff nurse with overall responsibility on the relevant shift, for relying on delayed and prompted email evidence from the agency senior care assistant, and for not properly reviewing resident X's care plan and fluid records before the dismissal decision. It also found that matters were conflated in the disciplinary process, including confusion between food and water issues, and that the appeal officer wrongly concluded that the claimant had brought no new information. The dismissal therefore fell outside the band of reasonable responses and the unfair dismissal claim succeeded.

On remedy, the tribunal rejected contributory fault and Polkey reduction, but found that the claimant had not taken reasonable steps to mitigate loss. It assessed that she should have secured alternative employment by 1 November 2019 and limited the award accordingly. The claimant was awarded a basic award of £1,046.00 and a compensatory award of £11,198.60, made up of loss to 31 October 2019 and £500 for loss of statutory rights. The total award was £12,244.60, with a prescribed element of £10,698.60 and £1,546.00 payable immediately.