[2025] UKUT 118 (AAC)

The reasons he was shouting is that ES could not hear him. The words he used saying he will leave were not threats but referred to an earlier conversation where ES said she did not think he would return given how difficult she was the night before.

He did not delay in responding – the DBS said he took 3-4 minutes to respond but if that were the case he would not have appeared on the 4 minute video. There was only 4 minutes of footage and he was there for 12 hours the night before and 3 hours the night of the footage.

He did express remorse.

The DBS failed to take into account the fact that ES was very challenging and he should not have been there by himself, he was in darkness, he had worked 12 hours with ES the day before, and this was his 5th day of night shift. The company should not have let him go by himself; the staff after him were doubled up and still found it challenging.

ES did not complain: the complaint was made by her son with whom the appellant had disagreed the day before. Therefore, the DBS should not have relied on unlawfully obtained evidence.

The company paid the appellant to settle before the Employment Tribunal. The company therefore admitted they were at fault.

He did not give consent to being recorded and his company did not know he was being recorded. Therefore, the DBS should not have relied on unlawfully obtained evidence.

The DBS did not ask anything of the ES’s daughter or of ES and therefore failed to investigate.

i)The DBS failed to take into account that no harm was done to ES.

The DBS failed to take into account the appellant had an unblemished history at the company and was highly valued.