[2025] UKUT 118 (AAC)

The DBS case relied on the four-minute video evidence, and the dismissal hearing by the company and the appeal of that dismissal. The appellant was dismissed for gross misconduct. Despite the appellant being with the patient ES for over 15 hours there was only four minutes of footage. We are told the camera automatically deletes anything that is not saved.

The video shows ES yelling for the appellant saying repeatedly: “no lights – you promised no lights.” She also yells for her daughter. She leaves her bed which was on the floor and shuffles round the back of the bed on her bottom having pushed away the Zimmer frame. Once on the floor she calls to the appellant to help a number of times in quick succession. He comes into view of the camera, walks straight towards her and picks her up from behind using her upper arms. She is surprised and distressed and yells “no” repeatedly. He then tells her to go to bed and guides her to the bed. He then lets her go but may be holding her hand and she falls back on to the bed whilst he was moving the cover. He tells her with his finger pointing to go to bed or he will leave. He tells her if she “does like last night” he will leave another three times. He assists her getting into bed and she says: “Can I have” and then the footage stops. The appellant told us he went to get her a warm bottle for her stomach and water to drink.

The appellant was representing himself. Given this we set out his evidence fully to ensure we have captured everything he wanted us to hear.

In his evidence he told us that the video is the only piece of evidence against him, it was obtained illegally as he did not consent to being recorded and was an abuse of his personal data. The DBS failed to investigate this and should not have relied upon illegally obtained evidence.

He told us the video is only four minutes, but he had been there for 15 hours over two nights by himself.

He said he had already been on three night shifts in a row and should not have been working but his manager said the family were desperate for help. The usual work of the company is support for those discharged from hospital and not those who are extremely agitated like ES.

On the first night which was a 12 hour shift, the appellant was concerned about ES’s breathing. She was saying she wanted to go to hospital and did not feel safe. The appellant called her son. He told the appellant not to call the ambulance despite ES asking him to as her son said she was “acting”. The appellant called his manager and after that conversation he called the ambulance as ES had capacity to make the request. ES’s son was annoyed and when the ambulance arrived, he talked the paramedic into not taking her to hospital on the telephone. He said to the appellant that he could not go to the hospital to organise things and that he and his sister had jobs to go to.

The next day his manager agreed that he should be doubled up with another staff member but there was no one available. He agreed to go and see what he could do. When he arrived, ES’s daughter was at the door. Both ES’s daughter and ES said that they did not think he would return given “she gave you a hell of a night”. ES said she would be “good” because if she behaved as she had the night before “you will go”. This was why the appellant said to ES that he would go as we saw on the video. He was referring to this conversation and his intention was to remind her of her promise.

In terms of the four minutes of video footage, the appellant said that ES’s bed was moved down to the floor so she could not fall out. The night before he had stood by her bed to make sure she did not.

As soon as ES’s daughter left on the second night, she became agitated, was kicking things and shouting and he was trying to talk to her. He had to work in the darkness as ES did not want any lights on. ES’s daughter had told him to keep the kitchen light on so he could see a bit. When ES wanted all the lights off, he also turned off this light and so he was in total darkness. He did not respond immediately to her calls as he did not know what to do to calm her down. He told us there had been hours of doing this over two nights and he was running out of options.

ES was on the floor by this time and the appellant was in the room, but she did not see him. She was yelling for him and got out of bed. She moved around the bed on the floor. The appellant went towards her and picked her up suddenly by the arms. She was clearly distressed by this. He said his immediate concern was that she was on a cold floor. He said he could not have used anything else to help her as she was too frail to use the chair or the Zimmer frame from the floor to pull herself up.

He moved her around the side of the bed. He leant over to move her cover so she would not sit on top of it, and she sat on the bed. He did not drop her. The DBS recognised this and retracted the allegation that he dropped her but said he did not support her into her bed. The appellant told us that this was not the only time she left her bed but, as there was only 4 minutes of video, this is all we see.

The appellant told us that he was here today as he does not take things lying down. He could not afford a solicitor and so he was representing himself. He believed the DBS did not do their job as they failed to investigate properly given the serious impact it had on him.

After receiving the video, the company held a disciplinary hearing and the appellant was dismissed. This decision was upheld in an appeal hearing. The appellant told us that at his appeal hearing with the company he was told if HC, ES’s son, had not gone to the CQC and others the outcome would have been different, but they needed to protect the company image. He sets this out in a letter to the company dated 11 May 2023 which we had before us today. In it he said he was told, “The outcome would have been different if he did not take that route. CQC, safeguarding agency, police, it’s hard for all of us.” He told us that he never received a response to the email.

In dismissing the appellant, the company recognised his previous good service and the difficult circumstances he found himself in but determined that the video showed a poor episode of care. The panel considering the case was made up of three people including a former director of Adult Social Care and Children’s Services, an experienced retired GP and another person who is said to have had considerable experience of a number of roles including school governor and related knowledge of safeguarding. He appealed but the dismissal stood. A letter from the CEO of the company dated 5 May 2023 from the care agency telling the appellant of the outcome of the appeal said this:

“The video evidence was clear and compelling, showing a very poor episode of care and included the following:-

A failure to respond in a prompt manner to multiple requests for help.

Prior to “lifting” the lady from the floor, there was no conversation with her about what was happening and explaining to her what was to be done. She was obviously clearly distressed and disorientated and the actions that followed would only have made that situation worse.

I considered the “lifting” to be rough and to not follow policies and procedures and to also not be consistent with the relevant training that had been given to you. You are a well trained and experienced employee so would have known the correct way to do things.

I then found the way the lady was returned to her bed to again be unacceptable and not in line with standards as noted above and I also found the way the lady was spoken to, to fall into the same category.

What we saw in the video was an episode of very poor care and practice in which a number of considerable errors occurred one after the other.”

The appellant told us that the training on lifting was eLearning. There was no opportunity to learn how to lift in person and no opportunity to practise. Although there the information before us was that he was observed as well, this was for another patient who was using a wheelchair and he would help her from the bed to the wheelchair. He held her under her shoulders. In the bundle was the certificate for moving and handling and the appellant got a score of 100%. The certificate says that the course includes mobility, weight bearing, balance and fall prevention.

When he was asked by the Tribunal what he would do in the same situation now, he said “I would have left her on the floor.” However, when questioned by Mr Fisher, he was very clear that he would not have done anything differently.

In cross examination the appellant denied he failed to respond promptly, that the way he lifted ES caused her distress and that he failed to support her onto the bed. He said he was in total darkness and so could not see what ES was doing and could not see her leaving the bed. In cross examination Mr Fisher pointed out that the appellant went straight to her and appeared to be able to see. In response to a question as to why he did not respond to her when she called him 8 times, he said he did not know what to do. He had been back and forth to comfort her for hours and had run out of options. The night before he had stood for 12 hours by her bed to make sure she did not fall. He said he was not threatening her when he told her if she carried on behaving like this he would leave.

The appellant told us that he had a good history with the company and was considered a valued member of staff. This was clear from the investigations into his care. He told us he had been accused of stealing a client’s bank card and this was extremely stressful, but the family had found it at a later date. He said he often suffers racism from clients who do not like his colour and talk to a more junior member of staff because they are white.

In his submissions, the appellant likened his case to the videos taken of police in Manchester who were detaining people at the airport. By only seeing the videos taken by those arrested so much was missed of their behaviour before this happened. This supported his submission that we could not rely on the 4 minutes of footage out of about 15 hours.

We include consideration of Mr Fisher’s submissions in the analysis of the case below.