An employee who self-reported pushing a vulnerable resident has won his claim for unfair dismissal after the judge found the employer had failed to carry out a fair investigation or properly follow a fair disciplinary process.
What’s more, the judge awarded an uplift of 15% of the compensatory award for the failure to follow the ACAS Code of Practice on Disciplinaries and Grievances.
The case of Webb v Parkcare Homes (No.2) Ltd highlights the importance of ensuring that you act appropriately when addressing conduct issues in your business.
So, what happened and what can be learned from this case?
Facts of the Case
The employee was a Night Support Worker at a residential home for residents with autism and learning difficulties.
The employee completed an incident report form stating amongst other things that there was an incident in which he pushed away a resident quite forcefully, causing the resident to rebound into a doorway several feet away.
The incident occurred as the resident wanted ‘more attention than was professionally appropriate’.
The employee recorded in the report that the incident was not witnessed by any other member of staff, although there were two others on shift at that time.
What did the employee's manager find?
The employee’s manager found out about the incident by reading the incident report the next day.
He held an investigation meeting with the employee during which the employee described the incident in similar terms and provided some added detail including that at the time of the incident he was ‘in an unusual state of mind’.
A colleague who was on shift then volunteered a short statement describing what he had witnessed around the time of the incident, albeit he didn’t see the incident itself.
The employee was suspended, invited to attend a gross misconduct disciplinary hearing for pushing the service user and failing to adhere to the training he had received.
The employee complained that he felt the investigation was inadequate – that the other members of staff had seen him write the report and witnessed the aftermath and so should be interviewed.
He was not willing to go along with the disciplinary process in those circumstances. The employer disagreed, advising the employee that if he continued to feel this way it could be addressed as part of the disciplinary process.
The employee was told that if he did not attend the disciplinary hearing it would go ahead in his absence, which it did.
Prior to the hearing the employee sent a written statement reiterating his issues with the investigation but this time stating that he did not push the resident – he simply held his arms out passively and reacted to a crisis situation in accordance with his training.
The disciplinary manager carried out a paper review of the evidence and dismissed the employee with a right of appeal.
The employee attempted to exercise this right, prior to complaining to the employment tribunal that amongst other things he had been unfairly dismissed. He won this aspect of his case.
How confident are you
with your investigations?
What did the judge say?
- He accepted the reason for the dismissal was the employee’s conduct, that the employer had an honest belief that he was guilty and that there was a reasonable basis for that belief given the information the employee provided in the incident form and the investigation meeting
- A key issue was the adequacy of the investigation – the failure to interview the other two employees on shift was “an obvious shortcoming”. They may not have been witnesses to the actual push, but they were there or in the vicinity throughout the build-up and could have given evidence about the employee’s and resident’s actions and other information regarding the circumstances. Further investigations were repeatedly requested and became a “stumbling block to an effective disciplinary hearing”
- Going ahead with the hearing in the employee’s absences was unreasonable, it should have been re-arranged and the further investigations carried out
- Having made the decision to proceed in the employee’s absence, it was all the more important to pay close attention to his written submissions, but there was no engagement with it. It is hard to know what the dismissing manager made of the employee’s assertions to the effect that there was no push. The manager was entitled to form the same view that the tribunal did – that this was not consistent with his earlier statements and was not reliable – but he should at least have explained why he thought so
- The appeal stage “became something of a farce” – the employee was given the name of who to appeal to, but that person was not informed about it, the employee was then told not to contact them. The judge emphasised that as the disciplinary hearing was held in the employee’s absence it was all the more important to ensure that he had an effective right of appeal
How should I deal with a conduct issue?
- Carry out a fair and reasonable investigation and document it. Unsure what investigations are required in a particular case? Get in touch
- Follow a fair process – this will usually involve inviting the employee in writing to attend a disciplinary hearing (and providing them with all the evidence), holding an in-person hearing, giving a written outcome and effective right of appeal
- Remember, even if a thorough investigation was carried out before the disciplinary hearing, additional investigations may still need to be carried out during the process, for example the employee may raise something in their defence during the hearing that will need to be looked into in order to achieve a fair outcome
- It can be necessary to reschedule a disciplinary hearing if an employee requests it – if you receive a request, contact us for advice on the facts of your situation. Likewise, if an employee refuses to attend a disciplinary hearing or fails to attend. It won’t usually be appropriate to hold a disciplinary hearing in an employee’s absence where they have only failed to attend once.
- If an employee has less than the two years continuity of service required to bring an ordinary unfair dismissal claim, it may, depending on the circumstances of the case, be possible to dismiss without following the usual process. However, it’s important to seek advice before taking any action as there are many employment tribunal claims that can be brought by employees from day one of their employment so it’s important not to get caught out.
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