[2025] UKUT 075 (AAC)

In his closing submissions, Mr Serr for DBS spoke to DBS’s written response to the appeal and urged us to uphold the decision.

Regarding the videos that the appellant had provided, he submitted that they were taken after the incident, that they do not shed any light on whether there has been a mistake of fact. He observed that it was worrying that the appellant did not report the matter when she saw the people were asleep. It does not add anything to the decision.

He submitted that, despite the appellant’s evidence about the blanket not having been brought in from home, there was still evidence of intention to sleep. He referred to her having fetched a blanket, her failure to alert her employer to her medical condition or tiredness or need for a break. He submitted that her evidence was not wholly credible, given her shifting reasons for why she slept, and shifting accounts of whether she was asleep. He submitted she deliberately took a sleep during what she believed to be a break. He pointed out that AG does not mention there being an interaction with the appellant during which she woke up. He acknowledged it was not possible to fill the gap in AG’s evidence about why she did not come back to take a photo.

He reminded us that the employer says a phone was available and she could have alerted colleagues. He accepted that if she dozed off accidentally then there was nothing to tell, but emphasised that she knew she needed to be awake and alert.

Regarding the employer’s change of heart regarding the DBS referral, Mr Serr submitted that this was just the appeal manager trying to do the appellant a favour. What was said in the letter to DBS seeking to withdraw the referral about the appellant not posing a danger to service users because she was not lone working was in fact substantially contradicted by the appeal manager’s findings on the appeal which included that there was a risk to service users. He pointed out that the other waking staff are downstairs, not upstairs. There is no interaction between the two floors. There is clearly risk in a situation where you are the nightworker and you fall asleep when looking after vulnerable service users. Staffing levels are only adequate if the staff are awake. He submitted that there was also some evidence from SS and JO of the appellant having slept on other occasions.

As to proportionality, he submitted that the appellant’s lack of insight, reflection or remorse makes the decision proportionate. He submitted there was a continuing risk.

The appellant in her closing submissions reiterated and elaborated on what she had told us in evidence about her mitigating circumstances, her acceptance of the mistake she had made and the impact on her of the barring decision. She said that when she wrote the letter of apology to AG immediately after the incident, she thought it would end there, she never thought it would escalate as it has. She explained that she had recorded the videos of colleagues to show that what she had done was part of a pattern; when staff have finished their duties, they can relax. They may doze off as she did. She did not plan to start sleeping.