Carr Gomm Scotland Ltd v Sneddon UKEATS/0031/10/BI
Appeal against a ruling that the claimant was unfairly dismissed. Appeal allowed and a finding of fair dismissal was substituted.
The claimant was a care worker who was supporting a vulnerable adult suffering from mental health problems. Two incidents occurred in which it was found that the claimant swore in front of his charge, was inappropriately sarcastic and his actions were aggressive. This behaviour was in direct contravention of the respondent’s code of conduct, the claimant was dismissed and his appeal was rejected. Whilst the claimant was still suspended an entry was made on his Enhanced Disclosure confirming that he had been the subject of an investigation and it was recommended that he should not care for the client concerned. The Tribunal upheld his claim for unfair dismissal, saying that, amongst other things, there were insufficient grounds for the respondent to sustain their belief that the second incident had occurred because they had not carried out a proper investigation, and in the absence of this incident, the first incident was insufficient alone to have warranted dismissal. The claimant’s compensation was calculated on the basis of an ongoing loss of income over 5 years – because of the entry on his Enhanced Disclosure the claimant had been unable to find work in the care sector.
The respondent appealed, submitting that they had dismissed the claimant because they had been satisfied that the second incident had probably occurred, the claimant had used foul and abusive language, the claimant tried to justify his behaviour as ‘mood matching’ and he had not followed the support agreement regarding the care of his client. They were entitled to rely on a third party account of the second incident which together with admitted conduct in the first incident amounted to gross misconduct. The EAT agreed with the respondent – the facts found that the respondent had dismissed a care worker for conducting himself in an inappropriate manner which was contrary to specific instructions and policies. Dismissal was therefore a response that was open to the respondent. The Tribunal’s reasoning process amounted to their adopting the substitution mindset and lost sight of the need to consider the question of what was a reasonable investigation and what was a reasonable response. Although the issue of compensation did not need to be determined, the EAT concluded that the reason the claimant could not get alternative employment was not his dismissal but because of the entry in the Enhanced Disclosure for which the respondent could not be held responsible.
Appeal No. UKEATS/0031/10/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal
On 3 February 2011
THE HONOURABLE LADY SMITH
MISS J GASKELL
MR P HUNTER
CARR GOMM SCOTLAND LTD (APPELLANT)
MR ANDREW SNEDDON (RESPONDENT)
Transcript of Proceedings
For the Appellant
MR D MACKINNON (Solicitor)
Law at Work Limited
151 St. Vincent Street
For the Respondent
MR J W K DICKIE (Solicitor)
Blackadder & McMonagle Solicitors
41 High Street
UNFAIR DISMISSAL – Reasonableness of dismissal
Unfair dismissal – misconduct. Tribunal found that dismissal of care worker unfair where one incident of misconduct was admitted and there was what they referred to as uncorroborated evidence regarding another incident - that lack of corroboration meant that the employer did not have sufficient grounds for their belief that the misconduct occurred, the first incident did not, on its own, justify dismissal, the second incident on its own did not in any event justify dismissal, there was no indication of how the dismissing executive had weighed the evidence, and the appeal panel had taken account of new matters and did not carry out further enquiry. On appeal, Tribunal's finding reversed. Submission accepted that the Tribunal had misunderstood and misapplied the facts so as to reach a conclusion which no properly directed Tribunal could have reached. There was circumstantial evidence to support the direct evidence regarding the first incident and sufficient evidence as a whole to justify the employer's belief that the Claimant was guilty of gross misconduct. Dismissal was within the range of reasonable responses in all the circumstances. Judgment of Employment Tribunal reversed.**THE HONOURABLE LADY SMITH** **Introduction**
- This is an employer's appeal from the judgment of an Employment Tribunal sitting at Edinburgh, Employment Judge Mr J D Young, dated 27 April 2010 finding that the Claimant was unfairly dismissed and awarding £27,227.60 as compensation.
- We will continue referring to parties as Claimant and Respondent.
- The Claimant was represented by Mr J Dickie, solicitor, before the Employment Tribunal and before us. The Respondent was represented by Mr D MacKinnon, solicitor, before the Tribunal and before us.
- The Respondent is a social care provider. The Claimant was employed by the Respondent as a support worker from January 2003. The Claimant was appointed to be part of the care team that supported a vulnerable adult who suffered from mental health problems (JS) in his home as from 11 August 2008. JS required 24 hour care. JS displayed difficult and challenging behaviour. He could become agitated and violent.
- The Claimant received training from time to time. At some point around the end of 2004, there was discussion of the use of "mood matching" as a means of coping with challenging behaviour by service users. That strategy was not adopted by the Respondent nor was it recommended to the Claimant.
- In May 2005, the Respondent introduced positive behaviour training.
- The Claimant was subject to the Respondent's Code of Conduct. Its provisions included:
"Violence or Aggression
Any form of ….verbal aggression towards a service user is unacceptable……..
No worker should use unacceptable language at work – examples include swearing or language that mocks or demeans someone because of who they are.
Verbal Abuse is the use of inappropriate language or volume of speech that is threatening, offensive or demeaning."
- In February 2008, a "Support Agreement" was drawn up for JS. Its provisions included:
"Staff will normally know that I am upset or agitated because I will:
Replay conversations that have upset me recently when staff are in another room
I may pick my finger and toenails and may even pull them off.
I may insist on throwing some of my personal belongings in the bin i.e. books or CD's
I will become very loud and shout and swear
I may become tearful
My tone of voice and body language may become more confrontational
I may shout about past events that have affected me or that I would like to return to places I have lived before
I may threaten staff or be verbally abusive towards them.
I may pick up objects and throw them around to show frustration."
and then, so far as dealing with such behaviour was concerned, the agreement provided that JS:
"would like staff to talk to me in respectful and calm manner." and
"I do not like it when staff raise their voices to me, this makes me more agitated."
- At his Disciplinary Hearing on 30 January 2009, the Claimant was asked if he had read the above Support Agreement and advised that he had not done so.
- A "Joint Review Meeting" took place between the Claimant and Carrie-Ann Scott, Senior Support Manager, on 12 August 2008, the day after the Claimant had joined the team caring for JS. A note of that meeting was one of the documents referred to before the Tribunal. It was signed by both the Claimant and Ms Scott. It included:
"Carrie-Anne discussed with Andrew that the way JS should be treated at all times is with respect and of JS is feeling a bit agitated that it should not be met with mood matching but in a calm manner and giving JS a lot of space (follow support agreement). Also that JS should never feel intimidated in his own home under any circumstances. Andrew feels that this will not be an issue for him and he will endeavour to try to support JS the best he can."
- The Claimant was on duty caring for JS overnight on 22/23 November (a Saturday/Sunday night). On Monday 24 November 2008, Michael Kirkbride, Operations Manager, received a call from one of the Respondent's support workers advising her that a friend, Pearl Struthers, had contacted her to tell of a concern she had about the care of JS. Pearl Struthers lived in the flat above JS. Mr Kirkbride immediately went to JS's flat. The support worker who was present at that time (not the Claimant) said he had no concerns about JS. He contacted Kevin Fullerton, service manager, who went to speak to Pearl Struthers. She said that she had heard raised voices coming from JS's flat overnight on the Saturday into Sunday morning. She said she heard someone shouting at JS. Mr Fullerton kept a note of the meeting. It stated that Pearl Struthers heard:
"Sit down, lie don't move" and
"shouting, bullying, aggressive – just not nice".
and that she said:
"heard this before – similar voice" - "knows when he sounds aggressive when speaking to John" and "tends to shout bullying".
- The note also recorded that Ms Struthers said:
"time before was concerned and should have said something – noughted stomach".
- Ms Struthers was able to describe the person she had seen leaving the flat and her description was sufficient to identify the Claimant as being the person to whom she was referring.
- JS made no complaint about the way he was treated on the night in question. However, JS was known to be apt to be frightened and it was known that his past experience may have been that it was normal for bad language be used towards him. He was vulnerable.
- The Claimant was on leave from 24 November but was called in to the Respondent's office and suspended on 26 November 2008. The Respondent advised the Care Commission and the Protection of Vulnerable Adults Committee of the local authority, of his suspension, as they were obliged to do.
- In addition to having spoken to Ms Struthers, Mr Fullerton also took statements from other members of JS's care team one of whom was Linda Mauchline. She was asked whether she had any concerns about her colleagues' practice and answered:
"John, Andrew and me were walking to the bus stop. Carrie had been absent the week before and was due back that day. It was a Monday but I can't recall the exact date without checking the rota. John had not mentioned Carrie's return and we 3 were having a general conversation. I then heard Andrew say to John 'Don't mention fucking staff to me' then he spoke about John being upset about Carrie being off but I can't remember the exact words. Andrew then said 'But when she came in it was 'Oh are you wanting a cup of tea?' Whilst it was not overtly aggressive and he was not shouting Andrew was definitely sarcastic in his tone. Andrew's statement was littered with swearing (using fucking) but I can't give a direct quote apart from the first one. John appeared to be taken aback and said 'O come on now Andrew I've got to make the wee lassie a cup of tea'. John had hold of my arm as he often does and in order to reassure him I said 'Here is your house John and you've got to make folk a cup of tea'. That distracted JS. I also visually motioned to Andrew to cease his line of conversation. I tried to be as discreet as possible as JS would probably have become agitated if he felt Andrew and I were having cross words…….."
- Ms Mauchline decided that, on reflection, she ought to speak to Carrie-Ann Scott about the incident and decided that she would do so at the next joint review meeting. She did not, however, get the opportunity to do so
- One other member of the team referred to the Claimant being "authoritative, intimidating and upsetting" towards JS.
- On 4 December, the Claimant was interviewed by Mr Fullerton. He said that there had been no disturbance during the night of 22/23 November. He denied that the incident spoken to by Ms Struthers had taken place. So far as the incident described by Linda Mauchline was concerned, his position was that it was she who had first used a swear word about Carrie and that JS became agitated and said:
"I will fucking tell her when she gets back about Lorraine working with Robbie"
and admitted that he did then say:
"JS don't fucking talk to me about your staff because when Carrie comes in you will say 'Oh do you want a cup of tea hen'.
- He explained that his use of bad language with JS was an attempt by him to "mood match".
- The Claimant was called to a Disciplinary Hearing, which ultimately took place on 30 January 2009, by letter which stated that the allegations to be discussed were (a) that he had spoken to the man he supported in a threatening and aggressive manner and (b) that a colleague had said that she observed him behaving in a similar way. He was advised that the Respondent regarded such conduct as being in breach of their Code of Conduct and policy on Adult Protection and that his conduct was, potentially, gross misconduct which could lead to his dismissal. Mr Kirkbride presided over the hearing.
- At the hearing, the Claimant continued to deny that the incident reported by Ms Struthers had occurred, confirmed that he had sworn in conversation with JS when with Linda Mauchline and when asked how he thought that that was appropriate, referred to it being "mood matching". The Claimant advised that his understanding of "mood matching" was that "if someone were behaving in an aggressive or abusive manner towards you, that you would adopt the same manner towards that person."
- Mr Kirkbride considered matters after the hearing and concluded that the incident spoken to by Ms Struthers had occurred. He was concerned that the Claimant had not followed the directions given by his line manager at their meeting on 12 August 2008 and that he had not read the Support Agreement for JS.
- In terms of the Respondent's procedures, Mr Kirkbride did not have power to dismiss – only the Chief Executive or Deputy Chief Executive had that power. Mr Kirkbride recommended the Claimant's dismissal to the Deputy Director Lucy Wren. She wrote to the Claimant by letter dated 11 February 2009. The reasons for his dismissal were stated to be:
"1. You spoke to a Service User who is a Vulnerable Adult in a manner which was abusive and disrespectful.
2.You behaved in ways which might have potentially caused harm to a Service User.
3.Your behaviour may have brought the name of Carr – Gomm Scotland into disrepute."
- The Claimant appealed. He said he thought the punishment too severe. He continued to deny that anything had occurred on the night of 22/23 November. As regards the other incident, he said: "As for the swearing incident I hold my hands up and can only say sorry."
- The Appeal Hearing was chaired by Mr O'Donnell, a Board member who was a retired social worker. The basis of the appeal was considered and it was noted that Mr Kirkbride stated that the "original incident" would not of itself have led to a recommendation to dismiss. The Appeal Panel also believed that the 22/23 November incident did take place, it was a serious breach of the Respondent's Code of Conduct, it ignored the specific instruction the Claimant had been given on 12 August 2008 and the other incident was an example of swearing which was sarcastic. The combination of verbal abuse of a vulnerable man in his own home and swearing in public merited dismissal – the Claimant so acted despite training and explicit instructions to the contrary.
- Before the Tribunal, the Respondent's Chief Executive, who was also a member of the Appeal Panel said that account was taken of the fact that two of the three members of the care team had spoken of the Claimant being authoritative, intimidating and upsetting to JS (it was in fact only one other member of the team), and that some reference was made to a note of an annual appraisal and a note of January 2005 regarding training of the Claimant – these two items had not been put to the Claimant.
- Disclosure Scotland, the Executive Agency of the Scottish Government which maintains records of previous convictions and other information that may be relevant in considering a person's fitness for certain types of employment (including work with vulnerable adults in the care sector) placed an entry on the "Other Relevant Information" section of their "Enhanced Disclosure" as follows:
"Central Scotland Police can confirm that in November 2008 the applicant was the subject of an investigation after his conduct towards a client had been reported by an independent party as aggressive. The enquiry established that no crime had been committed, however, it was agreed that it would be appropriate that he would not care for the client mentioned and his working practices would be monitored."
- The cause of the entry may have been the reports that the Respondent was obliged to make to the Care Commission and the local authority committee, to which we refer above. The Respondent had no control over the inclusion of that entry or as to its terms. Those terms seem to indicate that the entry was made once the Claimant was suspended – there is no reference to his dismissal, as might have been expected if the entry had not been made prior to that point.
- The Claimant looked for alternative work including care work but the terms of his Enhanced Disclosure prevented him from obtaining work in that field. He could not find alternative employment.
- The Tribunal found that the dismissal was unfair for the reasons set out in paragraph 174 of their judgment:
"174. The decision of the Tribunal was that the dismissal was unfair because:-
1. There were insufficient grounds for the respondent to sustain their belief that the claimant had verbally abused and bullied JS on 22/23 November 2008 as they had not carried out as much investigation into the matter as was reasonable in all the circumstances of the case. A reasonable employer would have wished more from the neighbour.
2. In the absence of that charge the incident on 17 November 2008 was insufficient for a reasonable employer to have dismissed on its own even if it was as described by the respondent as the claimant swearing 'at' JS. The fact that the incident was not deemed sufficiently serious to be even mentioned by Linda Mauchline to Carrie-Ann Scott or anyone else at the time belied it being categorised as gross misconduct.
3. The incident on 17 November 2008 was misdescribed as the claimant using "foul and abusive language directed at a Service User". The evidence did not establish that description.
4. The explanation of the claimant on the Note of the Joint Review of 12 August 2008 was given no credence without any enquiry of Carrie-Ann Scott as to whether that explanation had veracity.
5. Even if the dismissing executive could take a decision to dismiss without hearing from the claimant no evidence was available from her as to how she weighed the evidence in coming to a reasonable belief in the guilt of the claimant either on the incident of 22/23 November 2008 or 17 November 2008.
6. The Appeal Panel in their deliberation took account of matters not before the disciplinary panel, apparently not taken into account by Lucy Wren or put to the claimant as matters forming part of their consideration. They conducted no further enquiry to address the concerns at 1 – 6 above. They appeared to consider that the claimant had been "mood matching" in respect of the incident on 20 November 2008 against "clear instruction" when (a) that was not the claimant's position in respect of that incident and (b) if they thought he was "mood matching" they made no enquiry to ascertain if this in fact had been a feature of past training."
7. The respondent did not consider the events of the 22/23 November 2008 to be on their own sufficient to dismiss. Thus it would be outwith the range of reasonable responses to dismiss for that reason according to the respondents had it not been for the further incident of 17 November 2008. As stated the Tribunal did not consider that the evidence of the events of 17 November 2008 stood up to the assertion that the claimant had been abusive to a service user. They did not think that swearing had been "directed" at the Service User". It was acknowledged that a swear word had been used but not in an abusive way and thus the strength that the respondents found in the combination of the two incidents did not appear to exist. Thus dismissal would be outwith the range of reasonable responses of a reasonable employer."
- Regarding the first of the above matters, the Tribunal considered that Ms Struthers ought to have been interviewed again, after Mr Fullerton had spoken to the Claimant and the rest of the team to seek "further and better particulars" (paragraph 144). Regarding the fourth matter, the Tribunal do not appear to have taken any account of the fact that the note of the Joint Review meeting, which is clear and unequivocal in its terms, was signed by the Claimant. Regarding the fifth matter, although the Tribunal earlier in their judgment, expressed concerns that the Respondent's procedure involved the Deputy Chief Executive taking the decision to dismiss on the basis of a recommendation and commented that there was nothing in the evidence to suggest that Lucy Wren had taken an independent view of the evidence – the position was in fact that there was no evidence on that matter one way or the other and the Tribunal did not make any finding in fact as to her reasoning. That, no doubt, is why the fifth matter is in the terms above which, we observe, do not in fact reflect any finding of failure on the part of Lucy Wren to act as a reasonable employer would have done. That being so, we are unclear as to why the matter appears as amongst the reasons why the dismissal was unfair. As regards the seventh matter, insofar as the view is expressed that the bad language used by the Claimant on 17 November had not been directed at **JS, it would seem to conflict with the reasoning adopted when it came to the question of whether or not the Claimant had contributed to his own dismissal. At paragraph 178, they state:
"….there was no support for the view that in the incident of 17 November 2008 the claimant's use of bad language could be excused by "mood matching". The claimant was sarcastic in the comments made to the service user at that time." (our emphasis)
- We also note that the Tribunal appear to have looked for support to the case of Henderson v Granville Tours Ltd  IRLR 494, a conduct dismissal where it was found that there had not been a reasonable inquiry by an employer who had concluded that a coach driver had driven dangerously on the basis of a report by a single passenger when there were other passengers with whom the allegations could have been checked. The Tribunal viewed that authority as being to the effect that it was unreasonable to dismiss:
"…on customer's complaints alone, no matter how truthful or reliable the complainants might be. Further investigation is needed, even by small firms, before reasonable belief in the misconduct is established."
- When it came to the matter of compensation, the Tribunal assessed it on the basis of an ongoing loss of his income from working in the care sector over a five year period. They did so because:
"183. ……………There was no prospect of work for the claimant in the care sector in light of the comments made on the Enhanced Disclosure document."**The Appeal**
- For the Respondent, Mr MacKinnon submitted that, on the findings in fact, the Respondent had dismissed the Claimant because (a) they had been satisfied that the incident reported by Pearl Struthers as having happened on 22/23 November had probably occurred, (b) on 17 November 2008, the Claimant had used foul and abusive language, (c) the Claimant, rather than acknowledge that he had behaved inappropriately on 17 November, sought to justify it as "mood matching" and explained that "mood matching" was adopting the same manner as the other person if they were behaving in an aggressive or abusive manner – in circumstances where any use of swear words to a service user would always be inappropriate, and (d) the Claimant had not followed the Support Agreement regarding the care of JS.
- Insofar as there was no direct corroboration of the incident of 22/23 November, the Respondent was entitled to and did rely on the fact that the Claimant's admitted conduct on 17 November lent support to the Respondent's conclusion that the Claimant had behaved as Ms Struthers reported him to have done. The Respondent was entitled to rely on the clear account given by her, which identified the Claimant and conclude that, when considered together with his admitted conduct on 17 November, conclude that there had, in all the circumstances, been gross misconduct.
- The Tribunal had erred in falling into the substitution mindset: London Ambulance Service NHS Trust v Small  EWCA Civ 220. They had not in fact followed the guidance given in BHS v Burchell  IRLR 379 and thereafter gone on to consider whether dismissal was within the range of reasonable responses. They had erred in their reliance on the case of Henderson.
- The Tribunal fell into error at the outset in considering that the only evidence to the effect that the Claimant had been guilty of misconduct on 22/23 November, came from Ms Struthers. The evidence about the 17 November incident and about the Claimant's attitude to JS were supportive in that they showed a propensity to behave in a particular way towards JS. The Tribunal relied on the fact that JS did not complain but took no account of his particular vulnerability and the fact that having bad language used to him may have been normal in the past. Ms Struthers' statement was clear and there was no call for her to be re-interviewed. As regards the 17 November incident, the Tribunal had focussed on the issue of whether or not the language was directed to JS and ignored the fact that its use at all was a breach of the Respondent's code. The Tribunal wholly failed to consider the interaction of the two incidents and failed to understand how the Respondent viewed the totality of the picture with which they were presented. Regarding Lucy Wren's position, it was not accepted that there was a flaw in the procedure but even if there was, it was cured by the availability of an appeal at which the Claimant was able to be heard.
- Overall, the Tribunal never asked the right questions. Rather, they decided whether or not they would have dismissed the Claimant and substituted their own decision. It was, however, on the facts, plainly within the band of reasonable responses for an employee in the care sector to dismiss the Claimant.
- Mr MacKinnon also made submissions regarding the Tribunal's approach to compensation. They had erred in their assessment; the entry on the Disclosure Scotland records which had proved to be an obstacle to the Claimant obtaining another job in the care sector was not something for which the Respondent was responsible nor over which they had any control.
- For the Claimant, Mr Dickie submitted that the Tribunal were entitled to conclude that the dismissal was unfair, they had analysed the facts correctly, they took account of the guidance afforded by Burchell and Iceland Frozen Foods v Jones, and they referred to Sainsbury's Supermarket's Ltd v Hitt  EWCA Civ 220 **although it was not relied on by parties and that showed that they were acquainted with that authority – it clearly informed their approach. Mr Dickie submitted that the Tribunal's reasoning was justified. In particular, the Respondent required to be cautious about the uncorroborated complaint of a third party. Caution also required to be exercised so far as Ms Mauchline's report was concerned because she did not report it immediately – he did not, however, suggest that the Tribunal should have ignored the Claimant's own admissions regarding that incident. It was important to bear in mind that the dismissal was for conduct not capability. The two incidents were different; on 22/23 November the allegation was of a loud voice and authoritative tone, not swearing. The incident of 17 November was the use of a swear word in casual conversation. It could not be said that no reasonable employer would see the events as being of a different character. He agreed with the Tribunal's view that the dismissal was unfair and we should, he submitted, do so.
- The Tribunal required to be mindful of the guidance provided by Burchell and Iceland Frozen Foods.
- If, as in the present case, it is not disputed that the employer genuinely believed that the employee was guilty of misconduct, and that belief was formed on the basis of a reasonable investigation then the only remaining question is whether dismissal was a reasonable response that was open to the employer in all the circumstances. The question was not whether a different form of investigation could have been carried out but, rather, whether a reasonable investigation was carried out.
- In reaching its conclusion as to the reasonableness of the investigation and the reasonableness of the dismissal, the Tribunal required to avoid falling into what is often referred to as the "substitution mindset" as recently discussed by Mummery LJ in the London Ambulance Service case:
"43. It is all too easy, even for an experienced Employment Tribunal, to slip into the substitution mindset. In conduct cases the claimant often comes to the Employment Tribunal with more evidence and with an understandable determination to clear his name and to prove to the Employment Tribunal that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy for the Employment Tribunal so that it is carried along the acquittal route and away from the real question – whether the employer acted fairly and reasonably in all the circumstances at the time of dismissal."**Discussions and Decision**
- We turn first to the Tribunal's conclusion that the Respondent did not have "sufficient grounds" for their belief that the incident complained of by Ms Struthers took place. We accept the submission that, on the findings in fact, that was not a conclusion that was open to the Tribunal. They considered there was no corroborative evidence. That is, we accept, not correct. The evidence regarding the way that the Claimant had conducted himself on 17 November and about his general approach to JS as being too authoritative pointed to the Claimant having a propensity to behave in that way and was, accordingly, circumstantial evidence on which the Respondent could properly rely – they did so. The Tribunal considered that it could not be accepted because Ms Struthers could have been re- interviewed. However, what she said on 24 November, very shortly after the incident, was clear. She identified the Claimant as being the subject of her concern. She gave a clear description of aggressive bullying and shouting directed at JS. It had concerned her sufficiently to make contact with an employee of the Respondent about it. So far as JS's lack of complaint was concerned, that could readily be explained by reference to his own vulnerability. Mr Fullerton had not expressed any doubts about Ms Struthers' credibility and reliability. The case of Henderson does not, contrary to the Tribunal's reading of it, support the proposition that the mere fact of a report of misconduct having come from a third party means that it has to be treated with caution. The Henderson** decision is readily understandable – there were other eye witnesses who may have had direct evidence to give regarding the conduct complained of. That was not the position here. It cannot be said that it was unreasonable of the Respondent not to revert to Ms Struthers and interview her again.
- Turning then to the Tribunal's characterisation of the incident on 17 November, we agree that it was not open to them to distinguish it on the basis that the bad language was not directed at JS. On the facts found (and in the Tribunal's own view, when it came to considering compensation), the swearing and inappropriately sarcastic attitude was plainly spoken to and shown towards JS, in conversation with him. Further, any use of bad language contravened the Respondent's policies. It is also instructive to note that the Claimant's own explanation of his conduct as being "mood matching" showed, given his explanation of what that meant, that he accepted that he had been acting aggressively.
- As regards the part played by Lucy Wren, we can deal with that shortly. As already observed, the Tribunal did not have any evidence on which they could conclude that she did not bring appropriate reasoning to bear on her decision to follow Mr Kirkwood's recommendation and, in fairness to them, they have not concluded that that was the case. However, we accept that even if there was any flaw in that part of the procedure it was cured by the availability of the appeal process.
- So far as the sixth element of the Tribunal's reasoning in paragraph 174 is concerned, given that the Claimant had himself signed the note of the meeting on 12 August, we do not see that the appeal panel unfairly took account of his having been specifically instructed not to conduct himself as he did. As to enquiries to see whether it had been part of past training, on the Tribunal's own findings in fact, the Claimant had never been instructed that it was a strategy which he should adopt and to behave as he did on 17 November was manifestly contrary to the Respondent's policies.
- The facts found by the Tribunal demonstrated that an employer in the care sector had dismissed a care worker for conducting himself in his care of a vulnerable adult in an inappropriate manner – a manner which was contrary to specific instructions and contrary to their policies. Appropriate treatment of a vulnerable adult was in issue, the circumstances were such as to require intimation to the relevant authorities and there was reputational risk. Such distinctions as could be drawn between the conduct on the two occasions are not, we agree, of importance. The conduct was of similar character and enough to cause considerable concern, given the nature of the job. Further, the conduct was contrary to specific instructions, contrary to JS's Support Agreement, it was found that the Claimant had not read the Support Agreement and he admitted misconduct on 17 November. In these circumstances, we consider that the Tribunal was bound to accept that dismissal was a response that was open to the Respondent.
- So far as procedure was concerned, as we have observed, there were no findings in fact on which the Tribunal could conclude that Lucy Wren did not carry out an appropriate consideration of matters and the Tribunal's criticisms of the Appeal Panel were not, we consider, justified since the circumstances did not require further investigation and insofar as instructions or training were concerned, the Claimant had signed the note of the 12 August meeting and did not, we note, ever suggest that mood matching was part of the Respondent's strategy – even if it had been, it was plain from the Support Agreement that it was not to be used in the care of JS.
- Overall, we are satisfied that the Tribunal's reasoning process did amount to their adopting the substitution mindset and losing sight of the need to consider properly the question of what was a reasonable investigation and what was a reasonable response.
- It follows that the Tribunal's decision cannot stand and since the facts do, we accept, only show that the investigation was reasonable and that dismissal was within the range of reasonable responses open to the Respondent, we will substitute a finding of fair dismissal.
- We do not, in the event, require to determine the issue raised regarding the basis for the calculation of compensation. Had we required to do so, we would have been minded to accept the Respondent's' submissions – the reason the Claimant could not get alternative employment in the care sector was not his dismissal (see: Employment Rights Act s.123(1)) but the entry in the Disclosure Scotland records and the Respondent could not properly be held responsible for that.
- We will pronounce an order upholding the appeal and substitute for the Tribunal's judgment, a judgment that the Claimant was fairly dismissed and dismissing his complaint.
Published: 11/03/2011 10:17