[2024] UKUT 239 (AAC)

In broad summary, the background is as follows (page references are references to the hearing bundle prepared by the DBS).

GR was at the material time a residential childcare worker. She was experienced having been a childcare worker for 21 years and well qualified for the role.

In January 2019 she began work for X services for children as a residential therapeutic childcare worker at a looked after children’s home (“the Home”). The Home housed children and young persons who were looked after by X on behalf of the local authority. The children were highly vulnerable being previously subject to neglect or abuse.

In November 2020, an incident occurred which led to GR receiving a first and final written warning from X services. The warning is contained in a letter dated 10/11/20 at pp72-73. The notice set out X’s finding that while she was working at the Home GR allowed J, a young girl and looked after person, to use GR’s mobile phone; gave J a gift in the form of a toy (2 harry potter wands and a monkey); bought J food (fish and chips) at the same time she bought some food for colleagues; dropping food to a member of her own family whilst on shift and with a young person in her car (the allegation was that she dropped some food off at her (GR’s) house for her daughter while J was in the car with her).

It is of note that there was a further allegation that GR had allowed J to visit GR’s home address. This was found by X not to be substantiated due to insufficient evidence. The warning letter does state however that “it was clear that you had shared so much personal information with the young person in question that she was able to give detailed information about parts of your home such that suggested that this could have been the case, which clearly demonstrated that you had inappropriately shared personal details with her”.

The matters found proven were considered serious breaches of X’s policies and procedures. Principally because it was a blurring of professional boundaries and conduct which may have given the impression of preferential treatment to the child or others.

The outcome was a final written warning, not dismissal, because GR’s actions were not maliciously motivated, she was genuinely remorseful, she did not intend J to form an attachment to her and she was aware that any recurrence would result in dismissal.

GR was also required to undertake training. She was given the right of appeal against the final written warning, which she did not exercise.

GR then moved jobs to work at a different Home that was operated by X services so she remained X’s employee.

On 9 March 2021 GR had a regular supervision session with her supervisor HP. Within the notes of the session a service user, N, is referred to.

N was a very vulnerable then 16-year-old looked after child. His care plan noted that he was on a SEN/EHCP [Statement of Education/Education, Health and Care Plan]. The plan also noted under ‘what I might need help with’, that:

“N suffers with anxiety which he has been offered a CAMHS [Child and Adolescent Mental Health Services] consultation where it was identified there were underlying issues and was also referred to Eating Disorder. N has also been prescribed anti-depressant medication by his GP for his anxieties but hasn’t taken any previously. N may need support with this and supporting him to learn what helps him to regulate such feelings. N may also need support with eating healthy and nutritional meals and to support in support from Eating Disorder specialists”- p. 178.

The notes of 9 March 2021 supervision session state “N- [GR] is building a positive relationship with N. N is a pleasure to be around and understands why he is at the home because of his ways. N girlfriend being pregnant has made him more responsible and is thinking of the future”- p.187.

On 14 April 2021 another allegation of misconduct arose. This was an allegation by N. The allegation was that he had gone to GR’s home and smoked cannabis she had given him. The allegation was made by N to another employee - PS - on 14/4/21 -p.57.

On 15 April 2021 the allegation was discussed with the county’s Local Authority Designated Officer (‘LADO’) and a LADO form completed. LADO updated X services that the allegation had been referred to police but that this did not meet their threshold for investigation at this stage. LADO confirmed that and internal investigation was the next course of action and that an update be given following the outcome.

GR (who was in her notice period having resigned from her employment previously on 8 April 2021 due to health and personal reasons) was suspended from work.

A disciplinary investigation report was produced dated 20 April 2021 by an employee of X services, KH - p.48-55. Various pieces of evidence were considered including the logs that showed that GR did take N out on trips in the car although there is no detail as to what purpose the trips were for. On one occasion GR was dropped off at a bus stop close to her home by an ex-staff member and N was present in the car. The ex-staff member confirmed this.

The report also attached a note taken on 19 April 2021 with N and HP, the deputy manager, of a discussion between her and N -p.56. N described GR’s house (lounge on the right, kitchen on the left, garden with shed and a wall, stairs in front of the entrance). N confirmed he smoked cannabis there after GR had driven him to her house. N told HP that GR’s daughter and daughter’s boyfriend was present. He said he smoked the drugs in the garden. N said to HP that on the way back to the Home GR asked N to tell PS, if he asked, that they had been out for a long drive.

A disciplinary hearing took place on 20 April 2021 with GR and CV - the Home manager. GR denied the allegation. The logs noted that GR had been on regular car journeys with N. N was able to give a description of the layout of GR’s home.

On 22 April 2021 GR was sent a letter stating that she would have been dismissed from her employment on the basis that the allegations concerning her conduct towards N were substantiated. Although the letter states that she would have been dismissed had she not already been in the currency of her notice period, this may amount in law to a dismissal as the notice period was cut short with immediate effect-p.63. In any event nothing turns on the legal effect of the ‘dismissal’ letter.

X services referred GR to the DBS on 29 April 2021-p.36-39