Case law updates

Investigation “lacking objectivity or rigour” leads to unfair dismissal outcome

A deputy care home manager accused of verbally abusing a vulnerable resident has won her case for unfair dismissal and awarded £11,000. Carol Streener (CS), a deputy manager who had worked for Barchester Healthcare at Woodhorn Park Care Home in North Shields since 2005, was summarily dismissed for gross misconduct after a complaint was made that she had allegedly told a female resident to “stay in her own shit”. However, the Employment Tribunal found that the investigation lacked “any objectivity or rigour”. The investigator simply accepted statements from other members of staff and at no point sought to interview the resident who made the initial complaint.

Following a complaint to the local council in June 2018, that a resident was being treated inappropriately by a member of staff. Another employee, Julie Bond (JB), who was initially (and wrongly) believed to be the subject of the complaint, was subsequently made the investigating officer.It was alleged that CS had noticed an unpleasant smell coming from a resident’s room and asked her if she had had an accident, which she denied. CS saw that the smeared in faeces, and having suggested to the resident that she have a bath – which was refused – she allegedly said she could “stay in her own shit”.

At the investigatory interview CS accepted the conversation took place but she denied using the word “shit”. She said she told the resident she would have to close the door because of the smell and also to protect her dignity. In the short Investigation Report JB recommended the matter proceed to a disciplinary hearing. At the hearing JS said the resident was an aunt who had a history of self-neglect, making it necessary to be firm with her to persuade her to have a bath. She also pointed to her “impeccable” work record. JS was found blameworthy of verbal abuse and dismissed. Her appeal was rejected.

However the Tribunal ruled that no consideration had been given during the investigation to interviewing the resident to see if she was willing or able to give her account of what had occurred and “In failing even to consider engaging on that point, the respondent acted as no reasonable employer would have acted. The investigation of the allegations “fell outside the band of a reasonable investigation of a reasonable employer”. The Tribunal also found that the dismissing officer had not been objective, simply accepting unsigned and undated statements of other members of staff without testing that evidence in any way. This was not the action of a reasonable employer. However, there was some evidence of lack of patience and care by GS and that she had contributed to her dismissal by approaching the matter in a confrontational way. Consequently there was a 40 per cent deduction in the award.