Claimant v Silverburn Care Limited
Outcome
Individual claims
The tribunal found the dismissal was unfair because the investigation was inadequate and no disciplinary meeting was held. Although the employer had a potentially fair reason (conduct) and genuinely believed in the claimant's guilt on reasonable grounds, the process was grossly inadequate. The claimant was not given the opportunity to defend herself, was not informed of her right to be accompanied, and no appeal investigation was conducted properly.
The tribunal found that the claimant's conduct in assaulting and shouting at a vulnerable care home resident struck at the heart of the employment relationship and was repudiatory conduct. This entitled the respondent to dismiss her without notice. The contractual claim therefore failed.
Claim withdrawn by claimant at the hearing.
Claim withdrawn by claimant at the hearing.
Arrears of pay and other payments claims withdrawn by claimant at the hearing.
Facts
The claimant, a support worker with four years' service at a care home, was summarily dismissed after CCTV footage showed her pushing a vulnerable resident (with bipolar disorder and dementia) away from an exit door for ten seconds using considerable force, then shouting at her. The manager witnessed the shouting, reviewed the footage, and decided to dismiss her immediately. No investigation meeting was held with the claimant, no disciplinary meeting was convened, she was not shown the CCTV or witness statements, and was not informed of her right to be accompanied. The appeal officer took no meaningful steps to investigate the claimant's appeal grounds.
Decision
The tribunal found the dismissal was unfair due to a grossly inadequate process: no proper investigation involving the claimant, no disciplinary meeting, denial of the right to be accompanied, and a sham appeal. However, the tribunal reduced both the basic and compensatory awards to nil (100%) due to the claimant's culpable conduct in assaulting the resident. A Polkey reduction of 100% from 3 May 2022 was also applied as the claimant would certainly have been fairly dismissed by that date. The wrongful dismissal claim failed as her conduct was repudiatory. Reinstatement/re-engagement and a potential financial penalty against the employer will be determined at a remedy hearing.
Practical note
Even where serious misconduct is proven and dismissal is inevitable, a grossly unfair process renders the dismissal unfair — but 100% reductions for contributory fault, conduct, and Polkey can leave a successful claimant with no compensation, though reinstatement/re-engagement remain possible remedies.
Adjustments
Tribunal found that had the employer acted fairly, the claimant would certainly have been dismissed by 3 May 2022 given the seriousness of the misconduct and damning CCTV evidence. 100% reduction applied from 3 May 2022 onwards.
Claimant's assault on and shouting at a vulnerable resident was the sole cause of dismissal. She contributed to her dismissal by 100%. She showed no remorse and remained in denial despite CCTV evidence.
Legal authorities cited
Statutes
Case details
- Case number
- 4103343/2022
- Decision date
- 25 January 2024
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- in house
Employment details
- Role
- Support Worker
- Service
- 5 years
Claimant representation
- Represented
- No