[2025] UKUT 98 (AAC)

We were dismayed by the wholly improper and unfair way that the employer carried out its investigation into the Allegations. That investigation was not fair, either to RW or to AG.

Taking AG’s evidence first, the first “interview” with AG amounted to his being asked a single question. That question was an emphatically leading one: “did RW push you in the back with her hands and say get into your bedroom? Any response to such a question, even by someone without a learning disability, would have only slight probative value.

There is no transcript of AG’s response to the question, but rather a narrative account: “[AG] stated and showed actions what RW did by pushing his two hands forward then said I’m alright now”. It is unclear whether AG “stated” what RW did, or whether his only statement was his saying “I’m alright now”. If he did say anything else, what he said has not been noted. Given the notetaker’s comment that AG “clearly didn’t want to say anything about staff”, the more likely reading is that AG said nothing about what RW did.

So, what should be made of AG’s gesture? The DBS decided it was “in part” corroborative of the Allegations. However, given that AG has a learning disability, and given the complex nature of the question, it may be that AG was simply modelling the action that had just been described to him by ML as AG tried to process what he was being asked or told.

In any event, we find the record of AG’s “interview” with ML to be much more consistent with RW’s account of what happened (that she put her hands on his waist and moved him so that she could pass) than with what SB alleged. Certainly, nothing in his recorded response provides any corroboration for the allegations that RW shouted at him, told him to shut up and go to his room and stay there, pointed her finger in his face and threatened to knock him out.

The second interaction with AG hardly takes us much further. The only question that touches on the Allegations was another leading question very similar to the one put to AG in the first interaction: “Did (RW) push you with her two hands”? This time a response is recorded: “Replied Yes pushed me in the back and told me to get into my room. I'm fine.”

This response is capable of corroborating the allegation that RW pushed AG in the back, and told him to go to his room, but it doesn’t corroborate the allegation that she pushed him with both hands down the hallway causing him to stumble, let alone any of the other elements of the Allegations.

The only conflict between AG’s evidence and RW’s evidence is that AG says that RW “pushed me in the back” while RW says that she placed her hands on his waist and moved him out of the way. They are agreed that RW asked him to go to his room.

AG is recorded as having said that he didn’t want “the member of staff concerned” to look after him anymore. However, the “member of staff concerned” is not named, and given that the conversation with AG took place on 10^th March 2023, a fortnight after the incident, it is not clear whether he was clear as to whom he was being asked about. Further, he is not reported to have said why he didn’t want “the member of staff concerned” to work with him. While it is possible to infer that it is for a reason connected with the Allegations, given how slight AG’s recorded account is, such an inference is not a reliable one.