[2024] UKUT 286 (AAC)

According to the record of her first interview with the Employer the Appellant: confirmed that she goes to the “quiet lounge” for breaks; claimed “always” to tell staff; denied sleeping there for longer than permitted, maintained that she would set her alarm and that others must be lying about the duration [123-124].

However, other interview records contradict the Appellant. HW said that the Appellant would be: “absent” most shifts for 1-3 hours [110] and that the Appellant would not notify her; and that the Appellant was found in the lounge “[l]aying there looking like she is asleep or on her phone to someone” [111]. HW added that, on 14 September 2022, the Appellant was asleep between 1.40am and 5.30am [111]. KF said that he had seen the Appellant go to the lounge with a giant teddy (which he presumed would be used as a pillow) and stayed there for 2 hours; indicating that she tended, more generally, to say she would be up there for 20 minutes but then stay for a “couple of hours” (KF said the Appellant “never used to until maybe a month two months ago”) [116]. BF said that the Appellant did “[n]ot specifically” tell staff that she was to take her break [108].

According to the record of her second interview, the Appellant denied being asleep for several hours on 14 September 2022. The Appellant referred to text messages sent during that timeframe (seemingly between at least 02.07am until 03.14am) [97]. While the text messages appear to prove that the Appellant was not asleep for the whole period, they do not prove that she was not asleep for other parts of it (or that she was otherwise working and available in line with the requirements of her employment).

The Employer appeared to accept that the Appellant could not have been asleep for the whole of the period in question on 14 September 2022, but referred to wider allegations about sleeping and connected issues. The Employer seems not to have made clear/conclusive findings on such wider matters but expressed concerns about the Appellant going to the lounge, being unreachable, and sleeping at any time while on shift. The decision to terminate the contract appears to have been based on other findings (i.e. those relating to the Appellant’s failures regarding the Catheter Incident and not reading X’s care plan).

In the Grounds, the Appellant contends that the sleeping allegation was found to be untrue and, moreover, that the “member of staff” who alleged this is “untrustworthy” and a proven “liar” [5].

DBS did not find proved the allegation that the Appellant had been asleep between 1.40am and 5.30am on 14 September 22. It took into account the inconsistencies in accounts. It concluded there was insufficient evidence to prove that particular allegation [150]. There was no wider allegation about sleeping more generally while on shift or failing to be available.

According to the records, a number of sources claimed that the Appellant spent considerable time on her phone at work. HW said that the Appellant “quite regularly” used her phone [111]. KF witnessed the Appellant on her phone at least 5 times, including around the time he told her about X’s “burning” bladder [115]. KF added that he had witnessed the Appellant, later that day, scrolling through Instagram on her phone. It is recorded that KF said he heard the Appellant, during every shift (“without a doubt”) listening to videos on her phone in the office [115-116]. LS indicated that she had seen and heard the Appellant playing videos on her phone, for an hour and a half or so, in the office around the time of the Catheter Incident [119].

According to the note of her second interview with the Employer, the Appellant claimed not to watch TikTok at all [127]. No further questions appear to have been put to her about watching other videos (including via other platforms).

The Appellant does not appear to have addressed this matter (since being dismissed); but DBS has not raised it as a specific allegation.