SAFEGUARDING
ILLUSTRATIVE CASE: STREENER VS
BARCHESTER HEALTHCARE The employment tribunal care of Streener v Barchester Healthcare made clear that any employment disciplinary investigation must be objective and thorough to protect against the chance of the employer being found guilty of unfair dismissal.
In Streener vs Barchester Healthcare, the claimant was alleged to have spoken to a resident in an inappropriate confrontational manner, saying that if the resident was not willing to have a bath she would have to stay in her soiled state. The allegation was also that the claimant did not make sufficient efforts to persuade the resident to have a bath and was prepared to leave her in her room unwashed.
The disciplinary investigation was initially handled by a regional manager, as the manager was believed to be the accused. However, when it became clear that it was the deputy, the investigation was passed to the manager to conclude and suspend the claimant.
A letter summoning the claimant to a disciplinary meeting contained no details of the alleged incident and did not identify the resident involved. Unsigned statements were also sent to the claimant, together with the investigation report and other documentation.
Witness statements establishing what the claimant said to the resident and how she said it were inconsistent. Further complicating the matter, it also transpired that the resident was the aunt of the claimant.
The claimant was dismissed for gross misconduct on the basis that her conduct constituted verbal abuse.
At appeal the claimant referred to the inconsistent staff statements, denied being rude/abusive and stated she had followed the resident’s care plan in relation to the management of difficult behaviours. The claimant had an excellent record
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during her 13 years as deputy manager. The appeal was considered dismissed by the claimant’s employers.
Subsequently, the claimant brought a successful claim for unfair dismissal. She was awarded £11,603.21 aſter a reduction of 40% was applied for contributory conduct. The employment tribunal concluded that the actions of the claimant did not amount to gross misconduct, although she was criticised for being confrontational, stating “…there can never be an excuse on the part of a member of staff of a care home to show anything less that tolerance and patience towards a vulnerable resident even if that resident is also their effective next of kin.”
The Employment Tribunal complimented the operator’s clear policy framework - the issue was around interpretation of that policy and execution of the investigation. This created a number of helpful learning points for operators:
1. Complaints and follow-on disclosures should be properly documented, especially where a report is made over the phone.
2. Any motives behind the complaints should be considered. 3. The investigator should be independent of the allegation. 4. Witness statements should be signed and dated.
5. The allegation and evidence should be disclosed to the employee so that they have a chance to understand their case and respond.
6. A decision maker should justify in writing why their decision is necessary and proportionate.
7. Any mitigation advanced by the employee must be considered.
This case should not deter those looking to take a robust approach to safeguarding concerns, however, it does emphasise the need for a proper process where dismissal for alleged abuse has a significant impact on future employability.
www.markellaw.co.uk - 27 -
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