[2025] UKUT 221 (AAC)

DBS’ arguments on this appeal assume that the Priory Group made a finding, in their disciplinary investigation, that the Appellant was asleep on duty at Home 1 (DBS argue that the allegation of sleeping on duty was ‘found proven’ by Priory Group). However, that is not correct. The Priory Group did not find that the Appellant was sleeping on duty. The finding made was that the Appellant was ‘not adequately alert and aware of your surroundings’ when working at Home 1 as a waking night support worker. Such a lack of alertness and awareness could be explained by sleep, but could also be explained by some kind of semi-conscious precursor to sleep or by being so immersed in a prayer experience that external stimuli did not penetrate the senses. The latter explanation describes, in our view, a less culpable failure than sleeping.

Unlike DBS’ arguments on this appeal, their barring decision letter did not assume that Priory Group found that the Appellant was asleep on duty at Home 1. Nevertheless, the decision letter included a finding that the Appellant had been asleep on duty. Despite DBS’ finding of fact being more precise than the employer’s finding, and excluding arguably less blameworthy explanations for not hearing Home 1’s doorbell, we are satisfied that this was not a mistaken finding of fact, nor was the finding undermined by legal error. We arrive at that conclusion for the following reasons:

it is not disputed that TE was woken by the ringing of a doorbell that the Appellant did not hear. The Appellant gave oral evidence that there was no physical barrier between the lounge and the front door. Of themselves, these factors support the argument that the Appellant was, if not asleep, nearly asleep or so deeply focussed on some other activity that he was not aware that the doorbell had rung;

while there is no direct written evidence from the young person who returned to Home 1 at about 4.30 a.m. the notes of interviews with two care workers report the young person’s belief that the Appellant was asleep in the lounge (TE and CC). The absence of a statement from, or record of an interview with, the young person does not suggest that the care workers may have misunderstood, or fabricated, what the young person said to them. It is clear that the residents of Home 1 were vulnerable young people, and it is not difficult to understand why the managers of the home did not wish to drag a vulnerable young person into a disciplinary dispute between a staff member and home management. This was the young person’s home, and its care workers performed a quasi-parental role. Getting the young person involved in the dispute would probably have entailed asking them which care worker should be believed, which could easily have looked to the young person as having to take the unwelcome step of taking sides;

the Appellant’s evidence about the doorbell is contradictory and inconsistent. The notes of his interview with Home 1’s manager record his statement that ‘I will hear the bell if it is rung’. The day after that interview, the Appellant emailed the manager to confirm that he agreed with the note of the interview that had been supplied to him, adding that he may not have heard the doorbell because the TV in the lounge is always on. At this stage, the Appellant said nothing about the doorbell being faulty or quiet. It was not until the disciplinary meeting on 14 January 2020 that the Appellant claimed that the doorbell could only be heard ‘very faintly’ from the lounge. Sometime between the incident and the disciplinary meeting, Home 1’s manager tested the doorbell and reported that it could be heard from the lounge without difficulty even in daytime. The only way to square the manager’s evidence with the Appellant’s would be if the manager, shortly after the incident, secretly replaced the doorbell with a louder one or secretly fixed a fault in the original doorbell. We consider it implausible that the manager would do such a thing, especially in the light of the Appellant’s acceptance at interview that he would hear the doorbell in the lounge;

we do not accept the Appellant’s oral evidence that, when being interviewed by Home 1’s manager, he did not understand questions asked about the doorbell (he told us he ‘may not have heard the context of the question at the time’). If the Appellant misunderstood the question during the interview, he had the opportunity the next day to correct the interview record but did not do so even though he must have known that the record reported his statement that he would hear the doorbell (otherwise, he would not have sought to explain that the TV might have prevented him from hearing it);

the Appellant argues that the young people’s use of mobile phones, as an alternative to the doorbell, supports his argument that the doorbell was faulty or too quiet. We reject this argument. It is inconsistent with the Appellant’s statement in interview that he would hear the doorbell in the lounge and a more plausible explanation is that young people used mobile phones to be let in to the home at night because this would avoid waking the sleeping night staff member or other young people;

the Appellant argues that the credibility of TE’s evidence is weakened by her failure to wake him (if she really thought he was asleep). In our view, the Appellant’s failure, on his account, to speak to TE when she entered the lounge was equally, if not more, surprising. TE was the sleeping staff member, the Appellant was the waking staff member. On the Appellant’s account, TE’s behaviour was very odd yet he did not respond to it. She interrupted her sleep and came into the lounge, on her own, just to look at him (the Appellant says he saw no young person with TE and did not know the doorbell had just rung). The Appellant’s failure, on his account, to have said anything to TE further diminishes the credibility of his evidence in relation to events at Home 1;

the Appellant’s written evidence about the outcome of an investigation into an allegation of sleeping on duty made against another Home 1 support worker has no real probative value. Our task is to assess the evidence relating to this Appellant’s case;

there were inconsistencies between the Appellant’s oral evidence and his earlier written evidence (and also within his oral evidence) about his praying position. In writing, the Appellant’s case was that he was effectively immobile while praying on the sofa in the lounge and he gave oral evidence that, when TE entered the lounge, his only physical response was a lifting of the head. However, in response to Mr Serr’s question whether he thought it was appropriate to lie on the sofa during working hours, he said ‘in Africa, we do that, rolling on the floor thanking God, on the sofa it’s the same thing’.