[2025] UKUT 225 (AAC)

Having heard his evidence overall, including about the lengths he went to, in order to resolve the taxi issue that had arisen with the staff member at the WC project (and her partner at home), we found AA’s explanation of what happened on 12 December 2021 to be plausible. AA gave consistent oral evidence that he was not told the agency staff member was threatening to leave FR, that AA did not tell LB to leave that project and that he did not advise her not to sign any documentation.

The DBS concluded that AA’s submission was lacking in the detail provided by LB and VW and while the timings matched, the arrangements for cover and resolving the issue did not. However, we had the benefit of the email dated 18 December 2021 (page 513 of the DBS bundle) confirming AA spoke to VC about obtaining agency cover and that the VC staff member rang him back at 9.45pm to confirm there would be no agency cover. We also had the benefit of hearing AA’s evidence about the timings. His account was consistent with speaking to LB at 9.05pm, speaking again with her later on, and then speaking with LB at around 11.41pm, when he telephoned her.

We found credible AA’s explanation of not being given the on call mobile phone and the difficulties it caused him. His evidence, and the statement from LB explained how AA had LB’s telephone number because calls were patched through to his personal mobile phone and LB had rung him at 9.05pm. We found credible AA’s explanation that he had a conversation with LB at 11.41pm because she wanted to have a taxi arranged, and AA could not authorise that or pay it from his budget (just as he could not authorise a taxi at the project at WC). This was consistent with AA advising LB to contact VW to authorise a taxi. LB’s statement confirms she telephoned VW after that, although she did not suggest it was for that specific reason.

We found credible AA’s explanation that he rang the project before and after midnight, but not LB, because as far as he was concerned, she would have ended her shift with the agency staff remaining present and VW on standby five minutes away. If the FR situation had been left without any resolution, and AA was not able to speak to the project when he rang just before midnight, it would have followed for AA to ring LB (as he had her phone number) to check, but he did not do so. AA’s evidence was also that when he rang the project the next morning at 6.30am, the agency staff was present and did not suggest there had been any difficulties. Both of these are inconsistent with the types of difficulty suggested in LB and VW’s statements.

Mr Webster invited us to conclude that while there might be reasons for ill-feeling between VW and AA (connected with AA naming her in his grievance), there was no reason for LB to have a grievance against AA and therefore no reason not be truthful about what happened. However, LB was not made available by the DBS for us to ask her questions and to test her evidence about whether there was some misunderstanding between LB and AA about what she should do. We mention this, because of our evaluation that AA’s explanations of matters needed probing to understand fully and that his first explanation of something was not always clear. VW has not been made available as a witness either, and both her statement and that of LB are hearsay statements, which affects the weight that can be attached to them.

We accept and take into account AA’s evidence that there were endemic difficulties with having sufficient staff at VC to cover shifts, in particular, that agency staff would cancel without cover. This is consistent with the entries for 11 December 2021 in the on-call log on page 531 of the DBS bundle. There are other entries on the on-call log sheet, later in December 2021 that also appear to be consistent with these difficulties.

We accepted as credible, AA’s evidence that there was a general pattern at the FR project of staff not turning up, and VW providing cover, if required, by being 5 minutes away. Mr Webster submitted that given AA said there was a routine pattern of problems at FR with being short of agency staff, there must have been another reason for LB to remain present for several hours and the most likely explanation is the one she gave (that the agency staff was refusing to stay). However, no explanation is given for why the agency staff, whom AA said was generally sent to work at FR, should refuse to stay on this particular occasion. The records in the on-call logs on page 531 tends to suggest some staff staying past the end of their shift. This was AA’s evidence of his shift ending 3 hours late on 12 December 2021 as well.

We take into account that AA’s account was broadly consistent with the investigation meeting minutes (recorded as not verbatim) for 10 January 2022. It confirms AA’s account that he did not advise LB not to sign paperwork and he did not advise her to go home and to leave the service unsupervised. See page 204 of the DBS bundle, which records AA as saying that he confirmed as advised from VW that one person is able to stay there when people were in bed. See also page 202 of the DBS bundle, which records AA stating that he was aware that staff were staying overnight at FR alone once the residents were in bed and VW would be able to come out if there was an emergency as long as they are in bed.

We have taken into account AA’s evidence that he spent two hours driving around, trying to resolve the problems at the project at WC, to enable one staff member to get home, and another to go to their shift. In those circumstances, we do not find it plausible that while taking substantial steps to resolve the problems at WC, AA should tell LB to go home and to leave FR unsupervised.

Mr Webster invited us to conclude that AA’s evidence about his entries in the on-call log having disappeared, were not credible and were, again, evidence that his account overall was not credible. However, AA did refer in the investigation meeting dated 10 January 2022 to knowing he wrote the on-call log entries somewhere (page 201). In the disciplinary meeting notes dated 28 January 2022, AA is recorded as stating that he wrote something down in the on-call log but did not complete it, he needed to claim back his mileage for the other staff issue at the project at WC, and it was strange (see page 48 of the DBS bundle). In the appeal meeting dated 16 March 2022, AA was recorded as saying that VC had shown him that he had not recorded the incident on 12 December 2021 and why would he not write it down because he needed evidence to claim for the taxi back. This account is not fully consistent with what AA told us at the hearing, but we do not consider it undermines his credibility in the extensive way Mr Webster invited us to conclude.

As a result of the matters set out above, we therefore have concluded that the DBS made a mistake of fact in deciding that AA advised LB to leave the project at FR when the agency staff was refusing to stay alone, and this would leave the service unstaffed.