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Aggravating
Aggravating
MOO hit and therefore assaulted a vulnerable service user to whom she had a duty of care.
She was trained to control herself and de-escalate or use restraint. MOO was under a duty not to react or respond in kind to provocative behaviour.
It was an impulsive assault committed against a particularly vulnerable adult, RR who suffered from a number of conditions.
MOO did not give a reliable account either to her employer, the DBS or the Tribunal regarding the incident.
The DBS was rationally entitled to make the risk assessment as to future harm that MOO posed – this was a rational evaluation based on the lack of insight, reflection or subsequent remediation or training.
We are therefore satisfied that barring was necessary and struck a fair balance between MOO’s right to a private life and the public interest in safeguarding. The DBS expressly carried out the “balancing act” exercise required. Based on the findings we are satisfied for ourselves that barring strikes a fair balance, notwithstanding the impact that it has had and will have upon the Appellant.
We also take into account all the mitigating factors set out above. We recognise and understand the pressures placed upon MOO throughout her employment, the stressful nature of the barring proceedings and appeal and the impact upon her of barring. We know that this decision will come as a disappointment to her
- Heading
- The decision of the Upper Tribunal is that the Appellant’s appeal against the decision of the DBS dated 13 February 2024 is dismissed. There was no mistake of fact nor law in the decision to include h
- Introduction
- Factual background
- Undisputed Chronology
- The incident on 5 February 2023
- Investigatory meeting
- Disciplinary Meeting 17 February 2023
- The Internal Appeal – 27 March 2023
- The DBS Decision
- The Appeal to the UT and grounds on which permission was granted
- Legal framework
- a. “on any point of law” (section 4(2)(a) of the Act)
- Relevant general tests/principles
- Mistakes of fact and the UT’s fact finding jurisdiction
- Assessment of risk
- The grounds of appeal and the Appellant’s submissions
- Barring Decision Process – unreasonableness and disproportionality
- Mistake of law – procedural fairness
- Mistake of fact
- Facts Found
- Appellant’s evidence
- LR’s evidence
- Voice note of team leader Z
- Findings of fact
- Discussion and Analysis
- Other errors of law
- Irrationality
- Proportionality
- Mitigating
- Aggravating
- Conclusions