An employment tribunal has awarded a deputy care home manager £11,000 after a tribunal found she was unfairly dismissed for verbally abusing a vulnerable resident.
Whilst the employee in this case wasn’t blameless, the judge found that there were significant failings in the handling of the matter and that the decision to dismiss the employee for gross misconduct was unreasonable.
The case of Streener v Barchester Healthcare Ltd highlights the importance of employers carrying out an appropriate and thorough investigation into suspected misconduct, following a fair disciplinary process and considering all the circumstances of the case when deciding whether dismissal is an appropriate outcome.
The Facts of the Case
An anonymous complaint was made to the County Council that a resident at one of the employer’s care homes was being treated inappropriately. The complaint was passed on to the employer and the Regional Manager was sent to investigate. The subject of the complaint was initially believed to be the Manager of the home.
Shortly after starting the investigation a second anonymous phone call was received effectively saying the wrong person was being investigated and that the person being complained about was actually the Deputy Manager. Following this the Deputy Manager was suspended, the Regional Manager left the scene and responsibility for investigating the complaint was passed to the Manager of the home.
Members of staff were interviewed and two told versions of the same story – that the Deputy Manager had noticed an unpleasant smell coming from the room of a resident and asked if she had an accident, which she denied. The Deputy Manager then looked into the bathroom and saw it was smeared in faeces; she spoke to the resident about having a bath but the resident refused. After which it was alleged that the Deputy Manager said the resident could ‘stay in her own s**t or muck’. The witness accounts differed on the wording used. In an investigation meeting the Deputy Manager accepted the conversation between herself and the resident had taken place. She said she told the resident she would have to close the door because of the smell and also to protect her dignity. She denied using the specific words alleged.
The Deputy Manager was invited attend a disciplinary hearing to address ‘allegations of verbal abuse towards a resident’.
During the disciplinary hearing the Deputy Manager said the resident was her aunt, had a history of self-neglect and that it was necessary to be firm with her to persuade her to have a bath. She denied using the language alleged but repeated that she had had a conversation with the resident and that there had been talk about shutting the door. She pointed out her impeccable work record and put forward other points of mitigation.
Following the disciplinary hearing the Deputy Manager was dismissed for gross misconduct, the employer finding that the conversation with the resident constituted verbal abuse. After an unsuccessful appeal, the Deputy Manager complained to an employment tribunal that her dismissal was unfair.
The employment tribunal agreed that the Deputy Manager had been unfairly dismissed. The judge found that :
- The investigation was unreasonable. The allegations were potentially career ending for the Deputy Manager so the investigation should have been rigorous. Instead, the employer failed to consider the question of motivation behind the anonymous complaint or the possible motivation of witnesses and failed to at least consider whether the resident was competent and willing to provide evidence of the conversation in question, which was central to the issues in the case. Furthermore, the Manager of the home, who was originally believed to be the subject of the complaint, was given responsibility for conducting the investigation which was inappropriate.
- It was unreasonable for the Deputy Manager to be suspended without consideration as to whether this was proportionate. When the Manager was initially thought to be the subject of the investigation, she was not suspended.
- The disciplinary allegation was unclear and failed to provide the basic details the Deputy Manager needed to understand the allegation against her. It was found that no reasonable employer would have framed the allegation in that way.
- Having reached the conclusion that the Deputy Manager was guilty, the dismissing officer saw the case as one of gross misconduct and proceeded immediately to impose the penalty of summary dismissal without giving any consideration to the considerable mitigation put forward by the Deputy Manager. This included 12 years exemplary service. The decision to dismiss was simply not reasonable.
When it came to calculating the award for unfair dismissal, the judge took into account that whilst he hadn’t found that the Deputy Manager used either of the specific words alleged, he had found that the conversation which took place was critical of the resident and evidenced a lack of patience and care. The Deputy Manager was awarded £11,603 for unfair dismissal after a deduction of 40 per cent for her own contributory actions.
As this case shows, managing conduct issues can be difficult as there is often a lot to think about. It’s important for managers to act fairly and reasonably at all stages of the process and to be aware of the steps to follow.
When it comes to considering dismissals of employees who have two years’ service or more:
- You must genuinely believe the employee is guilty of the allegation/s detailed in the disciplinary letter – it’s important that allegations are clear and accurate
- You must have reasonable grounds for believing the employee is guilty
- At the time of the belief as much investigation into the matter must have been carried out as was reasonable in the circumstances
- Dismissal for the conduct in question will usually have to be provided for in the contract of employment
- Dismissal must be a reasonable outcome in the circumstances – this will involve taking into consideration any mitigation the employee puts forward and other matters, such as length of service and whether the employee has a clean disciplinary record.
If you have a suspected conduct issue in your organisation it’s important that you contact Kingfisher Professional Services Ltd for advice on your case at the outset, irrespective of how long the employee has worked for you. We can provide you with practical advice on the individual facts of your case.