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Safeguarding and employment rights
A delicate balance

The UK’s adult social care system employed an estimated 1.49m people across 39,000 establishments in 2018. With such a large workforce operating in a demanding, highly-regulated environment, it is inevitable that issues around employee conduct will arise. Deborah Nicholson of Markel Law discusses disciplinary investigations and how you can minimise risk when taking this type of action.

If an incident occurs in a care service, employers know that their priority is to safeguard their clients. Adult care facilities have a particular responsibility to the people they care for, and local authorities and regulators are clear that they expect operators to act quickly and decisively if an issue arises relating to staff conduct, investigating what has happened and identifying changes that need to be made.

However, as much as things must be put right, it is imperative that employees are treated fairly in any investigatory process, not only to protect them, but to protect the provider too. Having the right justification for any action taken, and following the correct procedure, can help all parties to minimise any potential fallout, including claims in the Employment Tribunal.

Your procedures

First and foremost, an organisation should have its own set of documented procedures that are sufficiently flexible to deal with the multitude of scenarios employers could be faced with.
These procedures should be communicated to staff and there should be evidence that this has been done. A common route is to provide an employee handbook to a staff member when they are inducted into the organisation, and ideally remind them of their obligations at regular intervals. It is important that all staff can understand the procedures and that management knows how to apply them if the need arises.

Taking the right path

Before you begin any disciplinary action, it’s important to ask yourself if the reason for taking action is appropriate. This question, of course, is difficult to answer with any degree of certainty at this early stage. However, it’s worth running through some initial questions before the action against your employee is launched to make sure your rationale will stand up to challenge:

Do you understand from the initial disclosure, what has happened and who is involved? It may be that you need to undertake some further investigation to establish this.

  • If there is a client involved, what is the status of their welfare?
  • Are there any records (or other material) that you can take possession of that may assist you and which need to be preserved?
  • Have you risk-profiled the disclosure and considered whether any interim steps are necessary?
  • Is this a case of alleged abuse and/or inappropriate behaviour?
  • Is there an allegation of dishonesty?
  • Has there been an error relating to the care of a resident, e.g. medication?
  • Who will investigate the concerns? Are they able to act independently?

Of course, this list won’t cover all eventualities and there is the issue of seriousness of offence.
However, it is a good starting point to help establish the basis of the investigation, which will be fundamental moving forwards.

When an incident occurs

If it appears that disciplinary action is warranted, it’s important to be proportionate and fair towards the employee. Always keep this in mind and ensure you broadly follow this checklist of key steps in the event of disciplinary action:

  1. Inform the employee of the allegations against them – together with supporting evidence – in confidence, and in writing, before the initial disciplinary meeting.
  2. Ensure the employee understands they can be accompanied during the meeting.
  3. During the meeting, make clear the potential disciplinary action that could be taken and the levels of management with the authority to take the disciplinary action.
  4. Give employees the opportunity to challenge the allegations before decisions are reached.
  5. Provide a right to appeal, and details of how to do this.

Investigations and evidence

Once you do begin your investigation, do not underestimate the importance of being thorough. Failure to conduct a proper inquiry can result in a successful counter-challenge by the accused at tribunal, as in the case of Gough vs East Midlands Crossroads, where the judge ruled that the investigation into the alleged incident(s) was ‘wholly inadequate’, even though the management team genuinely believed Mrs Gough’s actions amounted to gross misconduct.

Regardless of what the management’s belief is, it is critical to go through the proper process, take witness statements and interview people. If you think you can proceed on the basis of a strong belief at an early stage, you should question whether you are the right person to undertake the investigation and act objectively.

Any assessment that there is a case for the employee to answer must be based on actual evidence; speculation will not stand up to independent scrutiny in the Employment Tribunal. The assessment should consider all the evidence and not that which merely supports the allegation. If there is an appeal against a decision to dismiss, it is important that this is given proper scrutiny, as it provides employers with a chance to remedy any defects in the earlier investigation and initial decision.

Streener Vs barchester Healthcare

The recent Employment Tribunal decision in Streener vs Barchester Healthcare has also emphasised that a disciplinary investigation must be objective and undertaken properly or employers are at risk of being found guilty of unfair dismissal.

In this case, the claimant – the home’s deputy manager – was alleged to have spoken to a resident in an inappropriate, confrontational way, stating that if the resident was not prepared to have a bath then she would have to stay in her soiled state. The disclosure also stated that the claimant was prepared to leave the resident in her room rather than making proper efforts to persuade her to have a bath and restore her dignity. A disciplinary investigation was commenced and the claimant was eventually suspended from work.

The witness evidence obtained during the investigation established that there was an incident between the claimant and the resident relating to an unpleasant smell coming from the resident’s room; however, the statements were inconsistent in establishing what the claimant said to the resident and how she said it. In an additional complicating factor, it transpired the resident was the aunt of the claimant.

A brief report was prepared and the claimant was summonsed to a disciplinary meeting. The invite letter sent to the claimant contained no details of the alleged incident and did not identify the resident involved. Various unsigned statements were sent to the claimant, together with the investigation report and other supporting documentation.

The claimant was subsequently dismissed for gross misconduct on the basis her conversation with the resident constituted verbal abuse and a report was made to the Disclosure and Barring Service (DBS). The claimant launched an appeal, challenging the summary of her interview and denied being rude and abusive, stating she had followed the approach in the resident’s care plan in relation to the management of difficult behaviours. The claimant had worked for the respondent for 13 years as a deputy manager and had an excellent record. The appeal was considered on the papers and dismissed.

The claimant then brought a claim for unfair dismissal and was successful. She was awarded £11,603.21 in compensation after 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 approaching the situation in a confrontational way. The Tribunal stated, ‘There can never be an excuse on the part of a member of staff of a care home to show anything less than tolerance and patience towards a vulnerable resident even if that resident is also their effective next of kin.’

Interestingly, the Employment Tribunal was complimentary in relation to the very clear policy framework that was put in place by the operator. The issue here was around the interpretation of that policy and the execution of the investigation.

The importance of process

There are some very helpful learning points contained within the judgement:

  • Any complaint and further disclosures should be properly documented, especially where the report is made over the phone.
  • The motives of the complaint are a very relevant consideration for an investigator.
  • The investigator should be independent and not tainted by the allegation(s).
  • The more serious the allegation, the more rigorous the investigation needs to be.
  • Witness statements should be signed and dated or there is a risk they will carry less weight.
  • Disclosure of the evidence should be made to the employee to allow them to understand and respond to the case they have to answer.
  • The employer should state what the allegation against the employee is. It is not sufficient to expect them to deduce it from the witness statements or to make a vague reference to an incident without addressing where, what, when and who.
  • A decision maker should be given a framework/prompt to encourage them to justify in writing why their decision is necessary and proportionate.
  • Where the matter involves a resident, the investigator needs to consider whether they are able to give an account of what occurred. If they are unable or unwilling, this should be documented as part of the investigation.
  • Any mitigation advanced by the employee must be considered even where the findings reach the threshold for gross misconduct.

This case should not serve as a deterrent to those who quite rightly want to take a hard-line approach to safeguarding concerns. However, it does emphasise the need to follow a proper process, especially where dismissal for alleged abuse has such a significant impact on an individual’s future employability.

This article does not constitute legal advice and serves to provide observations on the aforementioned Tribunal decision.

Deborah Nicholson is the Head of Regulation at Markel Law. A health and social care specialist, she acts for a full range of operators in relation to contentious and non-contentious regulatory matters. Email: Deborah.Nicholson@Markel.com Twitter: @debbie_nic

How do your processes hold up? When have you needed to test them and what have you learnt? Share your knowledge in the comments below. 

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