[2025] UKUT 008 (AAC)

First, we have some observations to make in relation to some associated employment tribunal (ET) proceedings (case 2602311/22). The Upper Tribunal hearing bundle included a copy of the grounds of complaint brought by OS in the ET against the care agency (pp.145-151) together with the employer’s response to that claim (pp.152-159). The bundle disclosed no further information as to the outcome of those proceedings. However, it emerged at the hearing before us that the ET case had gone to trial. Mr Atanda told us that he had a copy of the ET judgment but not with him. Mr Serr not unreasonably raised the question as to whether we should have sight of the ET decision.

However, we took the view that an adjournment, even a short adjournment to source an electronic copy of the ET decision, was not necessary and announced as much in the course of our hearing. The ET proceedings were concerned with a range of different issues, several of which (e.g. various contractual matters) had no direct or indirect bearing on the matters before us. We had to decide on the lawfulness of the DBS decision on the basis of the evidence before us, applying different legal tests under different legislation. We simply note our concern that this matter arose at such a late stage in the proceedings. It is true that there was no Upper Tribunal direction to file a copy of the final ET judgment. However, parties are under a duty to co-operate generally with the Upper Tribunal (see rule 2(4)). We consider that this includes a duty of candour, to ensure that all relevant documents are disclosed in good time so that the Upper Tribunal has a complete picture.

We now turn to the incident in question and the subsequent developments. It is not in dispute that OS had only recently been recruited by the care agency from his home country. OS’s letter of appointment is dated 1 February 2022 and provided for a start date of 28 February 2022 (p.96). In fact OS did not start working in the role of ‘senior care assistant’ until 16 April 2022 (p.80 and p.155 para 23). He had undertaken a range of training before taking up his appointment, but this had been done remotely, i.e. on-line.

The incident in question took place on 5 June 2022. For a while previously OS had been working solo on night shifts. At fairly short notice he was rostered to be part of a two-person team (with Kim) on the day shift assisting Edward with his personal care at home. Kim had been working with Edward for some time but this was OS’s first occasion with him. On their first visit of the day Kim and OS were washing Edward while he was lying in bed. They were standing on either side of the bed (to start with at least). OS then moved away to pick up a sheet or bedcover while the bed-guard was down. At the same time Kim, who was wetting a flannel, asked Edward to turn over – Edward did so but fell to the floor on OS’s side of the bed. The fact that this accident happened was not relied upon by the care agency as a reason for the subsequent dismissal of OS. It was accepted that accidents happen. Equally, the accident itself is not the reason or one of the reasons why the DBS has made its barring decision.

It is not in dispute that immediately after his fall OS and Kim then lifted Edward back into bed. It is also not in dispute that manual handling protocols stipulate that a person who has had such a fall should not be lifted – not least so as to avoid the risk of injury both to the service user and/or the carer(s) in attendance. This was made clear in the relevant training module undertaken by OS, as he himself recognised in his disciplinary hearing. We also accept as inherently credible Kim’s detailed account of the immediate aftermath of the fall (p.104):

It follows there is no mistake of fact in allegation 1, that OS assisted in lifting Edward from the floor following a fall contrary to moving and handling guidelines.

Kim’s account then continued as follows (p.104):

In sworn testimony before us OS, on at least two occasions, denied having appealed to Kim not to tell anyone about Edward’s fall. We were unable to accept that evidence. This account by Kim was in effect corroborated by OS himself in his disciplinary hearing, when he said “I did not record it because I was really scared that I would be sent back to my country because I’m on a sponsorship visa and that’s my livelihood of feeding my family. So I didn’t report it in the continuation sheets of the notebook I didn’t report it, what happened, at all” (audio file 08:00-08.18). He also agreed that he had noticed the cut on Edward’s elbow (but not the injury to his toe) (audio file 13:55). In addition, he accepted that his record in the notes that there were no concerns was not true (audio file 15:03). Those admissions provide support for allegations 2, 3 and 6.

At the hearing before us an objection was raised as to the record of OS’s statement in the disciplinary investigation. OS denied having ever made the statements in the last four sentences of his version of events (at the foot of p.105), namely: “I begged Kim not to say anything and that if asked I would speak. We maintained this even on our second visit. When NOK asked why we did not report. In hindsight I know it was a very silly lie and we should have followed proper procedure.” The suggestion was that this passage had been fabricated by the employer. OS showed Mr Serr a WhatsApp entry containing his statement which purportedly did not include this passage. We do not believe the passage in question has been fabricated. In part at least, the contents are demonstrably true, in that the pretence that nothing untoward had happened was maintained on the second visit (see below). We note that the text is described as being part of OS’s ‘version of events’, rather than his ‘statement’ as such, and we consider it most likely that the disputed passage is simply the investigator’s summary of an admission made orally by OS.

We also interpose here that it was alleged on behalf of OS in the ET proceedings that Kim “had told the claimant not to report the incident or log it, otherwise there would be trouble. The claimant was the junior colleague who had just been sponsored into the UK and regrettably went ahead with the plan devised by [Kim]” (p.148 para 26). However, that account is completely inconsistent with the version of events that OS gave in the disciplinary investigation. Although part of that statement as recorded was disputed ( see above), this specific passage was not (p.105):

As we will see, we would add it was not simply a case of not telling NOK what had happened but rather actively seeking to deceive her as to what had happened, e.g. by denying that a fall had happened in their presence. That finding supports allegation 4. For all the reasons identified above, we entirely reject the false account as alleged in the ET proceedings that Kim was the instigator of the attempted cover-up.

The next developments were recorded by Linda, the line manager, as follows in her statement to the subsequent investigation (p.106):

The disclosure by OS at 10:46 was incomplete and positively misleading. OS knew how the tear had happened but was denying he had any such knowledge. This finding of fact supports allegations 2, 3 and 5.

At about 2 pm NOK telephoned the care agency to report that Edward had told her he had fallen out of bed during his morning wash. NOK was obviously concerned for her husband but was also concerned because the fall had not been documented in the client folder. Moreover, “she asked the carers about the fall and OS denied that they witnessed a fall” (p.101). Kim’s account of what happened at lunch-time was as follows (pp.104-105):

The failure to be frank with NOK was admitted by OS at his disciplinary hearing: “The second time I was still not composed… I was still scared of telling her what had happened. .. On my mind I was still thinking about my family, how will I feed them? How will I feed them?” (audio file 09:20-09:45).

The further developments in the early afternoon were reported by Linda as follows (p.106):

The exchange noted on the telephone call at 13:52 was likewise misleading on the part of OS, in that he was again denying to his manager that Edward had had a fall in their presence. This finding provides further support for allegations 3 and 5.

At 14:23 pm, according to the care agency’s response in the ET proceedings, “as Linda was heading to the client’s home to discuss the incident, Kim sent a message to Linda stating, ‘please pick up my call I will tell you the truth,’ which was followed by several missed calls and finally a call to the Director, where she [i.e. Kim] explained that OS had asked her to lie about the incident that took place” (p.157, para 38). This corroborates Kim’s own evidence as above.

At 15:00 pm Linda asked OS and Kim to attend a brief meeting later that day at the end of their shift, when they were each asked to prepare a statement detailing what had happened (p.157, paras 38 and 39).

OS (and indeed Kim) was suspended on the same day pending a disciplinary investigation (p.97). The disciplinary hearing for OS took place on 14 June 2022, conducted by Linda and Clive, a Deputy Manager – there is both a (non-verbatim) transcript of the hearing (pp.111-114) and an audio file recording, which we have had the opportunity to listen to. The report of the care agency’s investigation into the NOK’s complaint is at pp.101-110.

On 15 June 2022, i.e. the day after the disciplinary hearing, and according to the employer’s ET response, an ‘in-house reflective practise meeting’ took place, attended by Linda, Kim and OS “at which Linda gave both OS and Kim an opportunity to be truthful and give accurate information. However, OS continued to give an inconsistent narrative according to what the client’s next of kin had explained. This caused a lot of shouting and aggressive behaviour between OS and Kim” (p.157, para 42).

The complaint investigation report concluded as follows:

Following the meeting on 15 June 2022 and the disciplinary investigation, OS was dismissed for gross misconduct. The letter of dismissal (p.99) gave the following reasons:

The care agency referred OS to the DBS with the following summary of the circumstances (p.81):

Finally, so far as the facts are concerned, our attention was drawn to the differing outcomes of the two disciplinary cases. In the course of the ET proceedings the care agency gave four reasons to justify its differential treatment of the two carers involved in the incident with Edward and its aftermath (p.158, para 49):

Although she was not dismissed, Kim was in fact subject to a raft of disciplinary sanctions – she was suspended for 2 weeks without pay, demoted in her staff grade and required to re-do certain induction and training courses, as well as shadowing a senior carer for 3 months and being subject to spot checks for 6 months (p.109).