[2025] UKUT 221 (AAC)

Allegation 1 concerned events at a care home capable of accommodating six residents aged 16 to 25 (Home 1), operated by the Priory Group. The Appellant began working at Home 1 as a waking night support worker, as a permanent employee, in December 2017.

On 17 December 2019, KJ, a manager or supervisor at Home 1, interviewed support worker TE who was the sleeping night worker on 13/14 December 2019. The Appellant was the waking night worker. The note of the interview (p.58) reads as follows:

“KJ. I am speaking to you following receipt of your email dated 14.12.19 where you have informed me that [Appellant] was asleep during his shift. This has been reported as a safeguarding incident and I have been asked to conduct the investigation by MM the home manager.

Can you tell me in your own words what happened on the night of the 13.12.19?

TE. At 22.00 I had finished shift and handed over to [Appellant] there was not any significant issues to handover.

KJ. Was [redacted] in the house at handover?

TE. He had left the house at around 20.00 and had gone to his friends on London Road.

KJ. Was that handed over to [Appellant] during Handover?

TE. Yes it was [Appellant] had been told that only [redacted] was in the house and that [redacted] would be back around 04.30.

After handover I sat in the lounge and watched some TV before going to the sleep room at around 22.30.

KJ. Where was [Appellant] when you went to the sleep room?

TE. He was sat in the office with the door open, he was looking through some paperwork.

KJ. What happened next?

TE. I settled in the sleep room and around 23.00 settled to sleep. I was woken around 02.00 as I believed that I could hear [redacted] outside on her phone. Believing that [Appellant] was aware I did not get up to investigate. Although I am a very light sleeper, I could not recall hearing [Appellant] challenge [redacted] as to why she was outside at that time.

I settled back to sleep and was then woken by the doorbell at 04.23. I heard the bell ring again and a third time, and got up to let [redacted] back in the house. [redacted] was on the Phone to his parents at the time I opened the door and was heard to tell his parents, that all was ok as TE has just let me into the house.

[redacted] asked where was the Waking Night Staff and why had TE come to open the door. The office door was locked, and so we went to the lounge and found [Appellant] asleep on the sofa.

[redacted] went up to bed and informed me that this had happened before with [Appellant].

I returned to the sleep room, but was unable to settle. I heard [Appellant] moving around at 05.00.

…KJ…may I ask why you did not wake [Appellant] when you found him asleep on the sofa?

TE: I have asked myself that question and I am not able to answer that myself. I wanted to get [redacted] to bed and settled.

…KJ. May I ask why did you only report this via email to me, and not by phone to our on call MM the home manager on the Saturday 14.12.19.

TE. I was unsure of how to report this, either officially or unofficially.

…I did speak with CC my Team Leader, who advised me that it would have been better dealt with him speaking to [Appellant] when he came in to work on the night of 14.12.19. I said that doing that would only warn [Appellant] that he had been caught.

On 23 December 2019, KJ conducted a supplementary interview with TE, the note of which reads as follows (p.54):

“KJ…Can you please tell me the environmental setting when you went to the lounge with [redacted] what lights were on? Was the television on? Did you see anything in the hands of [Appellant]?

TE. The Christmas lights were on in the lounge. The dining area lights were off. The rest of the house was also in darkness. The television was on, on what I would describe as a normal level. I did not observe anything in [Appellant]’s hands at the time.

KJ. Was [Appellant] talking in any way, even under his breath.

TE. No. He was still and quiet.

KJ. That is the end of my questions…”.

CC was the day support worker to whom the Appellant ‘handed over’ on the morning of 14 December 2019. On 17 December 2019, KJ interviewed CC. The note of the interview reads as follows (p.55):

“KJ. It has been alleged that [Appellant] was asleep on shift on the night of 13/12/19…you were on shift on 14.12.19 and would have received a handover from [Appellant] when you came on shift. Is this correct?

CC. Yes I was on shift and received a handover from [Appellant].

KJ. Can you tell me what was handed over to you?

CC. I was informed that only [redacted] was in the house [redacted] was on home leave, [redacted] was out and had not returned to the home over night.

…After [Appellant] had left I spoke with TE who had been on Sleep shift during the night, and she informed me that [redacted] was in fact in the house and had returned around 04.30 and when she had opened the door both she and [redacted] had found [Appellant] asleep on the sofa in the lounge.

Whilst doing [redacted]’s medication, he also informed me that [Appellant] was asleep when he returned from his night out, and that TE had opened the door for him.

…KJ. May I ask why you chose not to contact On Call and inform her of the situation a team member had brought to you?

CC. I was led to believe that this had been done via email and that it would have been followed up by the home management in due course…”.

On 19 December 2019, Home 1’s registered manager, MMG, interviewed the Appellant, the note of which reads as follows (p.56):

“MMG: I explained to [Appellant] that it has been alleged that on the shift he worked 13/14 December 2019 he was seen lying on the sofa, assumed asleep and this was observed by TE and a resident [redacted].

…Were you asleep on duty on the night of 13/14 December 2019?

Appellant: I was not asleep and I contest that allegation.

MMG: A member of staff says that they saw you at approximately 4.30am asleep on the sofa in the lounge.

Appellant: I think this member of staff was [TE] but I was not asleep I was praying and she is mistaken; she should have said something to me.

MMG: Was anyone with TE?

Appellant: I did not see anyone with her. When I finish my duties at approximately 02.30am I sometimes go into the back room with my bible and pray.

…I pray at intervals throughout the night and I am sometimes deep in prayer that I don’t always notice things around me. I also fast.

MMG: Do you think it is acceptable to lie down on the sofa when you are on duty?

Appellant: Once I have done my duties I often lie down on the sofa to watch the television or pray.

MMG: Are you able to hear the doorbell from where you sit/lie?

Appellant: I will hear the bell if it is rung.

MMG: What information were you given at handover?

Appellant: I was told that [redacted] was out and he would be back late.

MMG: What time did [redacted] return to the house?

Appellant: He did not return to the house and this is what I told the day staff.

MMG: [redacted] did return to the house and TE had to get up from the staff room to let him in after hearing the bell ring three times and the door remained unanswered. Both of them then came into the lounge where they saw you lying on the sofa and described you as being asleep.

Why didn’t you hear the bell?

Appellant: I do not know. I didn’t hear it. It is my responsibility to complete my duties and I did not hear the bell but I was not asleep…”.

On 19 December 2019, MMG emailed the Appellant stating “attached is the transcript of today’s conversation. If you agree with the content please return to me indicating that you agree” (p.66). On 20 December 2019, the Appellant replied stating, “I agree with the above interview content”, and adding (p.66):

“1.

As the lounge TV is always left working at night, I may not have heard if the door bell was rang by anyone and the reason I was informed to always go about the flat with office phone, unfortunately this was not made use of by [redacted] when he returned to flat.

2.

My staying at the lounge was an agreement between myself and Dave when I complained about the temperature of the staff office at night time…”.

On 14 January 2020, the Appellant’s employer held a disciplinary meeting, which the Appellant attended. The written note of the meeting includes (p.60):

“Appellant: …I do not feel that the investigation was subjective [observation: presumably, ‘objective’ was meant] as I feel that historically there have been issues between myself and KJ…

..the office is near the front door. The lounge however is a long way from the front door and the doorbell can only be heard very faintly from the lounge location.

The main reason that I have been asked to walk around the house with the mobile phone is because of this. The YP [youngpeople] know to call the phone if they do not get a response from the doorbell. This night the YP did not call the phone. It was in my pocket and I would have heard it if they called.

I always pray somewhere between 4:00am and 5:00 am. I get the cleaning done at about 02:30 am and not before because the YP [youngpeople] like to come into the kitchen up until about 01:00 am. It takes about an hour and a half to complete the cleaning and then I do my prayers.

…The lights are out in the main part of the house to discourage the YP from being up and entering the kitchen etc. The Christmas tree lights were on and the TV was on so it wasn’t very dark.

I was aware that [TE] came into the lounge whilst I was praying however no one else was with her, I looked at her briefly and then carried on praying. If she believed that I was asleep she should have tapped me on the shoulder or said my name – we have a collective responsibility to the young people in our care.

In her statement it says that TE took the YP to his bedroom. He is 18 years old and no one does this.

I didn’t hear the bell and the telephone was in my pocket. I was not asleep.

No one has opened to door before to this YP. He always calls to let me know when he is on his way back. He hadn’t called that night but he does know to call if no one answers the door.

[Manager of Home 1]: The lounge is down the other end of the house. Am I right in saying that there are no actual walls between the lounge area and the front door?

Appellant: That’s right.

…Manager: You say that you were aware that TE came into the lounge. Can you clarify if there was any eye contact?

Appellant: I looked up at TE but there was no eye contact. I lifted my head and saw her. I don’t break my prayer unless it’s quite necessary. I didn’t think there was any need to acknowledge her. I didn’t see the YP. If I’d known the YP was present, I would have broken the prayer and acknowledged them.

Manager: TE said that you were lying down on the sofa with your eyes closed and you were very still. She clearly thought that you were asleep. Is this the normal way that you would pray?

Appellant: When I want to commune with god I do lie down quietly. When I pray in the office I sit and lean on the desk but in the lounge I lie on the sofa.

In her statement she says she saw me at 04:25am asleep but then she says she heard me walking around at 05:00 am. This is confirmation that I was praying because this is my normal behaviour. I pray at a point between 4:00 and 5:00 am and then after praying I get on with my shift and walk around the house.

Manager: Where TE was sleeping, i.e. in the sleep room. Is this closer to the front door?

Appellant: Yes much closer than the lounge. It is parallel to the front door.

…[Manager]: In hindsight would you have done anything differently?

Appellant: I don’t think I could have done anything differently. If I had heard the bell there is no way I would not have responded. If I could have been in the office rather than in the lounge I would definitely have heard the bell.

[Manager]: Do you accept the allegations being put to you?

Appellant: No, I strongly object to them. I was not asleep…”.

On 16 January 2020, the Appellant’s employer informed him by letter that the outcome of the disciplinary meeting was that he would be issued with a final written warning, to remain on his file for 12 months. The outcome letter, written by Home 1’s manager, included the following (p.68):

“…The evidence…shows that you were unaware of the doorbell ringing and unaware that another member of staff answered the door and subsequently let the young person in.

The staff member and the young person both came into the lounge to find you. The staff member witnessed you lying very still on the sofa with your eyes closed and therefore believed that you were asleep…

You have noted in your mitigation that the doorbell is difficult to hear from the lounge, I have therefore visited the home and tested this and I can confirm that in the middle of the day (when the house is arguably more noisy and active) the doorbell could be clearly heard from the lounge location.

We can confirm that you were not adequately alert and aware of your surroundings during this timeframe as you failed to hear the doorbell ring three times and you failed to notice that the young person was present with the staff member…”.