[2025] UKUT 075 (AAC)

The appellant was born in January 1987 and was aged 35 at the time of the event that led to DBS’s barring decision. She is a single mother with four young children. In September 2022 three of her children were of school age and one was pre-school. One of her children has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and places more significant demands on the appellant.

The appellant has been working in the care sector since 2019. She started working with Caretech Community Services in 2019, initially on an agency basis and then as an employee. She worked on average 20-25 hours per week, i.e. usually two working night shifts and sometimes three depending on her employer’s requirements.

The appellant has ambitions to become a qualified Mental Health Nurse and was studying towards that qualification one day per week as at September 2022. Her place on that course was terminated when she was placed on the barred list. This has been a source of considerable distress to the appellant.

Caretech has a Wake Night Staff Policy which requires staff “to remain awake and alert at all times”, “to be responsible for colleague remaining awake and alert” and “to report immediately to Line Manager if colleagues sleep on duty”. It also states “To be found asleep on Wake Night duty will constitute gross misconduct in accordance with CareTech Disciplinary Policy and Procedure and will result in dismissal”.

The Wake Night Staff Policy requires staff to clock into a TNA system every 2 hours during a night shift. The Policy makes no provision for staff to have breaks. In oral evidence, the appellant told us there was no system for taking breaks. Staff would just rest when they had done their tasks, as she said could be seen on the video evidence she had provided. (We add here that we assume the employer takes the view that Waking Night Support Workers are providing continuous care so that they are by virtue of regulation 21(c)(i) of the Working Time Regulations 1998 exempt from the regulatory requirement for rest breaks.)

The incident that led to the appellant’s referral to DBS occurred on 27 September 2022.

On the night of 27 September 2022 the appellant was on a waking-night shift, 9.30pm to 7.30am. She was working upstairs. There were six residents upstairs. One of them has difficulty sleeping and is often active most of the night. The others sleep. The residents have continence issues and may need pads changing during the night, although changing pads requires two members of staff. The appellant was required to check on residents every 30 minutes, complete a record to show she had done that and also to do other cleaning tasks during the night.

There were two other staff present in the building. Her line manager (AG) was doing a sleep-in shift, sleeping in a room upstairs. Although there was always a sleep-in member of staff, it was unusual for it to be AG as she does not normally do sleep-in shifts. Another staff member (agency staff) was working downstairs, where there were six other residents. At times the appellant has suggested there may have been another member of staff present in the building, but in her evidence to us she settled her recollection as being that there were only two other staff present and we accept that as it seems most consistent with the other evidence we have heard.

There is no doubt that at some point during her night shift, the appellant fell asleep on a chair in the lounge with a blanket on her legs and was found asleep by AG. However, that is only the ‘bare bones’ of what happened. In what follows we piece together the evidence and we set out our conclusions at the end.

For the reasons explained above, we consider that the employer’s notes of the appellant’s investigation meeting are not wholly reliable. However, it does seem to be clear from the investigation meeting notes, subsequent meeting notes and the appellant’s oral evidence to us that the appellant did on that night deliberately take a break when she has not taken a break before and there is no policy permitting staff to take breaks. It does not follow that she deliberately went to sleep and the appellant denies this.

In her UT10 appeal form and accompanying documents the appellant had maintained that she did not fall asleep. However, it was apparent from the start of her oral evidence to us that she accepts that she did. The denial of this in some of the documents seems to be because the appellant was advised by her solicitor that she instructed to assist her with making representations to DBS that there is a difference between “sleeping” and “dozing”. Now when she refers to ‘sleeping’, she appears to mean deliberately going to sleep whereas “dozing” she regards as not deliberate. The appellant is convinced that she did not deliberately go to sleep.

The nature of sleep is that it is not something that people are in general in control of. People may fall asleep when they do not mean to, and also fail to fall asleep even when they feel very tired. Particularly in the middle of the night, when alone and stationary, a person may fall asleep without making any conscious decisions about that. DBS uses a phrase in its decision letter “you had chosen a course of action which made it more likely that you would fall asleep on duty”. As we explain, we consider accurately captures what happened in the appellant’s case when all the evidence is considered.

Reading the investigation meeting notes can give the impression that the appellant deliberately went to sleep on a break. However, on a careful reading of that document, it is apparent that what has happened is that the appellant states she was taking a break and the person carrying out the investigation (SC) puts two and two together and starts asking questions on the assumption that the appellant had decided to go to sleep on her break. In fact, at p 82, the notes record “MG kept stating she was on a break and not sleeping”, which is consistent with the position she maintained subsequently at the appeal hearing and before us, i.e. that she had deliberately taken a break but had not deliberately fallen asleep. In the disciplinary hearing notes, the appellant is also recorded as speaking in terms that indicate she deliberately went to sleep on her break. However, having heard the appellant’s oral evidence and considered the whole of the notes of the investigation, disciplinary and appeal hearings, we find that what she is recorded as saying in the disciplinary hearing merely reflects the position she had reached in her own head at that point in terms of seeking to explain/justify what had happened. The appellant in the course of the investigation meeting seems to have had the thought that, if she was entitled to a break, she was entitled to sleep on a break and thus she spoke as she did in the disciplinary meeting. However, we find that this does not reflect what actually happened on 27 September 2022, which was that she fell asleep inadvertently.

What the appellant did at around 2.30am was to fetch a blanket/quilt from a room of spares and sit down in the lounge with the blanket/quilt over her knees. She did this because she was cold and the heaters provided were insufficient. We accept her evidence on this point. The documents refer repeatedly to the appellant having brought in a quilt from home, but the notes of the meetings do not record her as actually saying that. According to the notes, the appellant was first asked about the issue of the quilt in the disciplinary investigation meeting (p 71). According to the notes, she was not asked an open question. EB is recorded as asking “why were you wrapped up in your quilt?”. This appears to have been because EB has assumed, having read JO’s and AG’s statements, that the appellant had brought in her own quilt (JO) or blankets (AG).

When the appellant was asked about being wrapped up “in your quilt” at the disciplinary hearing, the appellant is then recorded as answering (after a further question) “I bring my quilt because it is cold. Since then I have not used my quilt. I have never slept on shift before that day”. It is understandable why anyone reading that would assume that she meant she had brought the quilt in from home (and why EB who assumed that is what she had done heard her response as meaning that), but that is not what she is actually recorded as saying. Further, when you hear the appellant say those words in real life, and check with her where the quilt was from, it is apparent that it was not from home. As she explained to us, she had never brought in a quilt from home, she brought “my quilt” from where spare bedding is kept in the care home into the lounge area. At the appeal hearing, the appellant maintained that she had not intended to sleep but had just dozed off for a few minutes. She was not challenged by the appeal manager (SK) on this or asked about whether she had brought in her quilt; the key question of whether the appellant had intended to go to sleep was not discussed at that appeal hearing. SK’s conclusions at the appeal stage thus appear to be based on the conclusions of the disciplinary hearing, which had of course in part been founded on the discredited statements of JO and SS and assumptions by the disciplinary hearing manager as we have noted.

The next issue we have to consider is how long the appellant was sleeping for. It seems to us that the combined effect of the statements of AG, SS and JO made it appear to the employer at the disciplinary hearing stage in particular (at which point it was not appreciated that SS and JO had not even been present on the night in question) that the appellant had been asleep for hours. In fact, having considered all the evidence, we conclude that it was a relatively short period of between about 15 minutes and an hour. We so find for the following reasons:-

First, that has been essentially the appellant’s evidence from the outset. She mentioned a period of an hour in the investigation meeting; in subsequent meetings, she says that she just ‘dozed off’.

Secondly, the appellant’s evidence that this was 2.30am and that she woke up after AG had been standing in front of her for what AG said was ‘5 minutes’ is more credible than AG’s statement in this respect as it explains why AG does not in her statement mention waking the appellant up and why she did not take a picture of her asleep. We find it too hard to accept that a manager who was doing a sleep-in shift for the purpose of making checks on sleeping staff in the light of a safeguarding referral would not have woken up the member of staff or taken a photo and then woken them up. We cannot accept that AG, being supposedly responsible for the home, just left the only upstairs member of waking night staff sleeping in the lounge. This flaw in AG’s statement leads us to doubt the reliability of the rest of her statement, including as to what she says about the time that she found the appellant asleep.

Thirdly, the evidence indicates that the appellant had to complete records of her checks on service users every 30 minutes during the night and clock in to a TNA system every 2 hours. There is no evidence that she failed to do either; if she had failed to complete records, we would have expected to see this dealt with as part of the employer’s investigation, but there was never any allegation either that she failed to complete records or clock in to TNA or that she fraudulently completed any records.

Fourthly, the appellant’s evidence is consistent with her handwritten letter of apology that she wrote immediately afterwards to AG. The appellant wrote: “I am writing you concerning the recent incident which occurred in my last shift. You caught me sleeping while on duty during my WN [waking night]. You said I should explain while [sic] I was sleeping on duty. The reason is that I was bit tired that very particular day, I wouldn’t say I did any other activity outside or working in another organisation. I only work for Careteck. Is just that the day you caught me sleeping I was tired. And I was studying during the day. Accept my apoligies (sic) I won’t sleep any more while on duty. Thanks for your understanding”. That letter is, in our judgment, consistent with the appellant’s evidence, confirmed orally to us, that she woke up and found AG standing in front of her and that is how she knew she had been ‘caught’. If the appellant had only found out that AG had ‘caught’ her sleeping when she was challenged by her in the morning when awake, as AG’s statement has it, we do not think she would have written her letter in the terms that she did. There would have been more denial or doubt in the letter, such as ‘you said I was sleeping’ or something like that.

A further element of the evidence concerns what the appellant did or should have done about notifying her colleagues that she was going on a break. It was suggested during the course of the internal disciplinary proceedings that she should have gone downstairs to tell her colleagues she was taking a break or that she could have phoned from a phone in the upstairs room. This whole issue becomes academic, however, once it is understood that what she did in terms of taking ‘a break’ was actually the norm in the home, and that she did not intend to go to sleep. We can see from the appellant’s video evidence that, as one would expect, it is normal for staff to sit down and take a rest during their shift. It is also apparent from the notes of the investigation meeting, and in particular what is noted of SC’s reaction (at p 82) to the suggestion that the appellant was taking a break, that formal breaks are not something that anyone takes so there are no formal arrangements for taking breaks. (Whether that is good practice or not, is not a matter for us.) Finally, although we accept in principle the appellant’s evidence that there was no phone that she could have used to tell colleagues that she was going on a break (since even if there is a phone in the office where her manager was asleep, her manager was asleep there, so using it would have disturbed her), the reality is that there was nothing for her to tell colleagues because she was not intending to fall asleep. Falling asleep was inadvertent.

We need also to make findings about the mitigating circumstances advanced by the appellant. These begin with the appellant’s handwritten letter we have just quoted. As can be seen, the appellant apologised in writing immediately after the incident, explaining that she was tired because she had been studying and gave her assurance that it would not happen again. At the investigation meeting, the appellant added that she had recently had an injection in her head to help with her migraines, which she said also made her tired. She said she had told her co-workers that she was tired when she came on shift, but that she did not want to cancel her shift at the ‘last moment’ because her manager would have been cross. She is noted as having accepted making a “mistake” and that it was ‘her fault’. At the disciplinary hearing she said that she had not told anyone about her migraines because she did not consider she needed to. She accepted again that she had ‘made a mistake’ and it was ‘her fault’. At the appeal stage, she added that she was also tired because she is a single mother who cares for her four children, including one daughter who has ADHD and is very hyperactive. When making representations to DBS in response to the minded to bar letter on 29 December 2022, the appellant added that as of 27 September 2022 she had also been in the early stages of pregnancy and she thought that had also made her tired. In evidence to us the appellant explained that she had not wanted to tell her employer about her pregnancy at her appeal hearing on 14 December 2022. We understood her to mean that this was because it was such an early stage in the pregnancy, but once it got to responding to DBS she thought it was so serious that she needed to mention everything. In evidence to us, the appellant maintained that all the mitigating circumstances she mentioned were true. In response to a question from Mr Serr, she added that she would not have been paid if she had cancelled her shift as her understanding was she was not entitled even to statutory sick pay.

The appellant’s employer and DBS have regarded the appellant’s additions to her mitigating circumstances over the course of the process as evidence that she is being untruthful. We do not find it so. We see no reason not to accept that all the factors mentioned are true. We understand that the appellant had initially thought that her letter of apology to AG would be sufficient and nothing more would be said about the incident. As it moved from stage to stage, she cast around to mention more and more reasons why she might have been tired. This is perfectly plausible and understandable, particularly when it is appreciated that the reason why someone falls asleep is not the kind of issue that is susceptible to proof one way or another. All the appellant can do, all anyone can do, is to list out all the things about their life that they are finding tiring. The fact that it took the appellant time to think of all the things in her life that might have caused her fatigue that night does not make her evidence incredible. Nor do we draw any adverse inference from her failure to mention the pregnancy at the appeal hearing. The early stages of pregnancy are a time that many people feel reticent about talking about pregnancy. A pregnancy that started at or shortly before 27 September 2022, would only have been coming up to the crucial 12-week point at or around mid-late December 2022.

Finally, we record what the appellant told us in evidence about the impact on her of the barring decision. In the hearing, she cried and said that she had been trying to do so much for her and her children, she realised she had been trying to do too much, that she should have cancelled the shift, but she was afraid to because her employer would be angry and also she would not be paid. She explained that she really wanted to become a mental health nurse, and had been in the third year of her course, but she was removed from the course once she was put on the barred list. She had not found other work as she is not qualified for other work. Working with children and vulnerable adults is all she knows how to do. She is embarrassed by the barring. She has been on benefits, which she does not want as she wants to work. She has £50,000 debt from a student loan that she cannot pay off because she cannot obtain work. She suffered serious post-natal depression (which she connected with the barring decision), when she was not able to get out of bed for days and weeks.