Claimant v Home from Home Care Limited
Outcome
Individual claims
The claimant failed to provide sufficient evidence that the reason for dismissal was that she took appropriate steps to protect herself or others from serious and imminent danger under s.100(1)(e) ERA 1996. The tribunal found the steps she took (putting her hand around a vulnerable resident's neck) were not appropriate, proportionate, or in line with NAPPI training, particularly given the resident's risk of choking. The claimant was also wearing a necklace contrary to policy.
The tribunal found that the decision to investigate the claimant was not because of race, but due to allegations of inappropriate restraint of a vulnerable resident, which would have resulted in the same treatment for any employee regardless of race. The manager's comment 'she shouldn't work for us anymore' referred to the organisation, not race, and was made after the investigation began. The dismissal was for conduct, not race—a White British employee who placed their hand around a vulnerable resident's neck would have been dismissed in the same circumstances.
Facts
The claimant, a Black African support worker on a zero-hours contract, was dismissed for gross misconduct after an incident on 11 December 2022 in which she placed her hand around the neck of a vulnerable resident ('J') with complex care needs and a risk of choking. The resident had grabbed the claimant's necklace, which she was wearing contrary to policy. Two witnesses, including the registered manager Lillie Cram, witnessed the incident. The manager later commented 'she shouldn't work for us anymore, don't want her back in here anyway'. The claimant was investigated, subjected to a disciplinary hearing, and dismissed on 29 December 2022. Her appeal was unsuccessful.
Decision
The tribunal dismissed both claims. The unfair dismissal claim failed because the claimant did not prove the reason for dismissal was her taking appropriate steps to protect herself or others from serious and imminent danger—the steps taken (putting her hand around the resident's neck) were not appropriate or proportionate given NAPPI training and the resident's vulnerabilities. The race discrimination claim failed because the investigation and dismissal were due to the alleged inappropriate restraint, not race. A hypothetical White comparator in the same circumstances would have been treated identically. The manager's comment referred to the organisation, not race, and was made after the investigation commenced.
Practical note
Employers in the care sector can successfully defend discrimination claims where dismissal results from alleged safeguarding failures, provided they can demonstrate that any employee, regardless of protected characteristic, would have been treated the same way for the same alleged misconduct.
Legal authorities cited
Statutes
Case details
- Case number
- 2600865/2023
- Decision date
- 28 February 2025
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Personal Support Worker
- Service
- 6 months
Claimant representation
- Represented
- Yes
- Rep type
- solicitor