[2025] UKUT 321 (AAC)

MOO was one of the two witnesses from whom we heard oral evidence. We found her to be witness whose evidence was reliable on peripheral matters but not as far as her evidence on the core allegation of punching RR.

We do not accept MOO’s written or evidence that she did not punch RR. We reject her key denial as being unreliable on the balance of probabilities. This is for the reasons set out below.

We begin by setting out the email that MOO sent to her manager EO on the evening of the incident as it her most contemporaneous account:

“Date: 5 Feb 2023 7:54 pm

Subject: Re: **S House Incident - 05/02/23.

To: EO

Cc:

Hello Emma,

Thank you for your concern and sorry for the late response. The pain reliever I was given had a drowsy effect and I had to take a break from my phone.

Find below my account of the incident and Night Shift with RR

The Night Shift started 19:30pm, RR slept at about 23:00pm and woke up at 6am. She was in her room talking to herself, I went in to meet her, we greeted and chatted a bit as she spoke of all her obsessions before I prompted her to observe her personal care. At about 07:30am, I offered RR a breakfast of coco pops and with the assistance of the morning staff as they arrived at about that time (BB and MJL).

After that, I went upstairs at about 07:35am to get the scale, when I got back, I came in through the kitchen door into the lounge. I was removing the scale from the pack when I prompted RR to come check her weight. She screamed and shouted saying I am not checking my weight, she charged towards me and quickly grabbed the scale of my hand, I was standing at the kitchen door which was shut and there was no room for escape at the moment. She got hold of the scale and hit me the first time on my chest, upon raising the scale the second time to hit me, I barricaded my body with my palms out and both arms crossed side by side. She hit me a second time this time on my arm/ palm.

All the while, the two day staff were sitting down on the dining area and did not intervene or try to de-escalate the situation. RR dropped the scale on the table and angrily walked out of the lounge door into the hallway and went into the second lounge to meet TB’s staff complaining to them that I said she should check her weight when she has a doctor’s appointment on the 15th of February,2023. I could hear the conversation from the lounge while I was packing up the scale, one of the day staff (MJL) said to me that I hit RR, I said that I didn’t and I was in pains from the impact of being hit with metal end of the scale. MJL did not further comment. The second day staff (BB) did not make any comment at all as she was on her phone.

TB’s staff encouraged her that the weight check is one of the task to be done. She returned to the lounge and I asked her gently again if she will want to check her weight again. She accepted and climbed the scale, we checked the weight together and she assisted with recording it on Nourish. I and RR had a brief chat before the end of my shift and she apologized for hitting me asking me not to write an incident report all these conversation were made in the presence of the day staff and to their hearing. I also did a handover to the day staff and ended by shift at 8am.

If you need any more information, kindly let me know.

Warm regards”

The contents of MOO’s witness statement dated 17 June 2025 stated as follows:

“2.

I am a dedicated care professional and have worked with vulnerable service users, including adults and children with special needs for three years.

3.

At the time of the incident, I was employed by PC and was supporting a service user referred to as RR, a young adult with complex needs.

4.

I am a mother and was pregnant during the incident. I have a personal understanding of the vulnerability of children and those with additional needs. I take my professional duties seriously and have always acted in the best interests of the individuals I support.

5.

The referral to the DBS arose from an allegation that I had assaulted RR during a shift. I categorically deny this allegation.

6.

RR is known to be verbal, expressive, and capable of giving a detailed account of her experiences. However, in this instance, the manager, EO, assisted in formulating RR's statement. The police report clearly notes that EO filled in the gaps for RR.

7.

RR's Care Plan, which I had stated during the internal investigation, records that she has a history of making false allegations against staff. This information was not appropriately considered by either my employer or the DBS in reaching their conclusions.

8.

On the day of the alleged incident, RR voluntarily told her parents, without pressure, that she had hurt me and was sorry. This was said before police were involved and in the absence of staff, which means that her statement was spontaneous and truthful.

9.

Her parents are a stable support system, and their account of RR's first reaction should have carried significant weight. RR's mother is also preparing a witness statement for this appeal which corroborates this account.

10.1

also possess an audio voice message from the Team Leader, sent to me after the incident, in which she absolves me of assaulting RR. I seek to include this audio message in the appeal bundle. It evidences that internal management at the time did not believe I committed any misconduct.

11.There was a witness, a staff member who interacted with RR immediately after the incident. Despite my repeated requests, the staff member's account was only taken very late and finally disregarded. The screenshots of the staff conversations which further support my innocence are in the index bundle

12.

Prior to the incident, I had raised concerns about EO's professional conduct, including the sharing of sensitive service user information via WhatsApp and improper communication of medical details. I raised this issue during a supervision session with the Team Leader.

13.

Emma expressed dissatisfaction after I raised these concerns. Since then, I experienced several forms of victimisation from her, including the exclusion of favourable evidence and the manipulation of investigation procedures.

14.

A current staff member recently contacted me to share a disturbing incident involving RR. According to the staff member, RR had accused her of hitting her. In response to this allegation, EO conducted an interview with RR and determined that RR had the capacity to be interrogated in relation to the matter. This is in contrast to how EO assessed RR's capacity in my case, where she concluded that RR lacked such capacity. The contrary assessments show a clear inconsistency and bias in how capacity was determined, apparently influenced by who the accused was. Unlike the other staff member, I was not afforded the same level of procedural fairness.

15.

A copy of the WhatsApp chat between myself and the staff member has been included in the case bundle.

16.

Also, RR's mother personally informed me that EO had made her aware of the incident and that the matter had been reported to the police. She also described how RR appeared distressed during the conversation, and expressed fear that she might be in trouble, which made her to apologised to me directly. This shows the level of emotional response from RR and the seriousness with which the allegation against the other staff member was addressed in contrast to the lack of fairness and consistency that I was given during the handling of my case.

17.1

believe the swift decision to implicate me was partially driven by bias and retaliation due to my earlier whistleblowing, and not an objective assessment of the incident.

18.

My union representative and I pleaded with management to allow RR to be interviewed, as she has the mental capacity to give a clear account of what occurred. This request was repeatedly refused.

19.

At no stage was I offered formal post Incident support by my employer, despite being pregnant and reporting physical pain. I had to attend A&E myself following the incident.

20.The DBS decision appears to have relied exclusively on the EO's account and those of two staff members, without assessing my version or RR's family's initial reports. This indicates a presumption of guilt and disregard for the burden of proof,

21.The decision further stated that my apology was not sufficient and lacked empathy. I would respectfully state that it is difficult to apologise for something I did not do, as it would amount to an admission of guilt. However, I deeply empathise with RR and all vulnerable service users that I have supported.

22.1

am a compassionate and caring professional who has always placed the safety and dignity of service users above all. I have worked diligently and faithfully in my role and have never before faced disciplinary action or safeguarding concerns.

23.The trauma of this accusation, combined with the lack of support and the loss of my career, has had a significant emotional and financial impact on me and my family.

24.1

respectfully request that the Tribunal reconsider this matter in light of this witness statement and also the following:

i.

The audio message from my Team Leader exonerating me.

ii.

The witness statement from RR's mother confirming RR's admission and apology.

iii.

Screenshot of RR's statement to parents

iv.

Screenshots of internal staff conversations

v.

RR's history of false allegations.

vi.

The procedural unfairness of the investigation and lack of direct testimony from RR.”

MOO gave extensive supplementary evidence in chief. The most relevant oral evidence related to her account of the incident. In summary, her evidence was as follows.

On the morning in question, around 7.30am on 5 February 2023, MOO was ending a night shift with the two other staff, BB and MJL, coming to take over. RR, a vulnerable service user, was under MOO’s care. RR had a GP check-up scheduled for 10 days later so MOO wished to check RR’s weight. MOO, RR and the two other staff were in the combined dining room and lounge, all close to each other. MOO was unpacking the weighing scales by removing them from the box when RR rushed towards MOO and grabbed the scales from MOO and hit MOO on the chest and MOO raised her arms and hands to protect her face and stomach. RR then hit MOO’s hands with the scales when MOO’s hands and forearms were crossed in front of her face. RR then threw the scales down on the table and it made a noise as they were bathroom scales made of metal. After throwing down the scales, RR ran out of the room and went to the other lounge and went to another member of staff. MOO took the scales that RR had dropped to prevent any further harm.

The two other members of staff, BB and MJL, were behind MOO during the incident and leaning on the radiator as it was cold. No one was between them and MOO. They were about ten feet away from MOO. BB and MJL stood there and did not move from their position or help her. One of them was on her phone and MOO did not know what the other was doing. They would not have been able to see RR’s back as MOO was between them. One of them did not say anything but the other, MOO thinks MJL, said MOO hit RR. It may be that MJL had thought MOO raised her hand so that is why she thought that MOO had hit RR. However, MOO did not register precisely what MJL was saying as MOO was in pain and was just rubbing her hands and forearms. MOO did not say anything in reply to MJL. When MOO was struck on the hands and arms, RR left. MOO was just rubbing her hands and forearms in pain and panting as her hands were hurt. RR was about five foot five inches tall, taller than MOO, and of a large build.

After the incident RR had gone on to the other lounge and to another member of staff who told RR she should not have hit MOO and that member of staff came to see MOO. MOO did write the incident down in a report although afterwards RR came to her apologising and begging MOO not to write it up. RR was telling MOO not to use her phone to enter the incident into the Nourish system. MOO wrote the report on the app called Nourish. It took her around 10-15 minutes as RR was following MOO around the building arguing with MOO not to write a report.

MOO finished her shift at 8am and then went home. She did not wait to speak to the team leader who would arrive at around 9am. When MOO got home and tried to lie down she was in pain and still panting, she called 111 to tell the operator she was hurt and also pregnant and scared about her baby. The operator told MOO to come into the hospital see the doctor. She visited L Hospital and they noted there was pain in her hands and MOO was recommended to take pain medication.

RR had a history of making false allegations against staff. RR was friendly with MOO when in a good mood but when she was angry RR could fight and hit and punch MOO and do bad things. Whenever RR was calm again she would apologise. They mostly got on with each other and RR allowed MOO to dress her hair and get closer than any other staff that worked with her. There had also been previous incidents when RR had hit and dragged and punched MOO. MOO had received training to deal with restraint and how to break away from RR and deescalate incidents by keeping a distance from RR. In this incident however MOO could not walk away as she was trapped between the door, dining table and chair. MOO noted that her employers and manager only interviewed the two staff and did not take a statement from RR about the incident. She noted that the manager EO assisted in formulating RR’s statement to the police and filled in the gaps for RR. RR bruises easily so the fact that there were no bruises on the body map supported MOO’s account that she did not hit RR.

MOO was cross examined by Ms Hartley for the DBS. She gave relevant evidence summarised as follows.

She thinks that BB was lying about what happened – BB originally said that MOO took a couple of steps and then hit RR on the back with a closed fist on the little finger (‘pinky’) side. BB had originally said MOO ran and then said that MOO took a couple of steps. The two staff, BB and MJL, are Filipino and MOO believed they were motivated to make up an allegation against her because she had previously said that Filipinos were of average height. They were angry with MOO and she apologised to them at the time but noticed a cold response from them and so they did not talk to her anymore. MOO never said anything offensive about them or Filipinos.

MOO accepts she did say in her minded to bar representations to the DBS that she might have unintentionally made contact with RR’s back. She did say she probably touched RR’s back but she did not know if she had. When MOO spoke to her union representative, and in response to their enquiries, MOO stated she raised her hands but maybe when she turned and followed RR, she may have unintentionally touched RR when she got the scales back from her. It may be that the witnesses who said MOO’s hand touched RR’s back were right but MOO never hit or intended to hit RR. She raised her hands across her hands and face to defend herself. She definitely did not punch RR’s back. MJL was lying like BB. The pair used the opportunity on the day to make up a lie about her – they spontaneously decided it was an opportunity to get revenge on her. It was malicious. EO also filled in the gaps during RR’s police report. MOO had complained to a team leader about EO posting personal information about service users on the team Whatsapp groups and creating a lot of Whatsapp groups and not following the employer’s instructions not to do so. EO wanted to get rid of her and what EO was wrote was different from the RR’s police statement. MOO never hit RR out of frustration or in return for the fact that RR had hit her with the scales.