[2025] UKUT 321 (AAC)

On 05/02/2023 whilst employed as a Support Worker for [PC], MOO struck service user RR on her back with her fist.

There are two largely consistent direct eyewitnesses to the incident, BB and MJL, each of whom gave internally consistent and contemporaneous accounts that MOO punched RR on the back. Even though they have not been cross examined, we consider that they are reliable. BB and MJL each gave written accounts by email no more than five hours after the incident on the same day, 5 February 2023 and before MOO gave her account. Their emails were as follows:

“11.26am

On 5^th of February 2023, we arrived in front of S House around 7.25am. We heard RR inside her lounge area with a loud and agitated voice. When we walked inside, RR went to us and greeted ‘Good Morning’ with unhappy and low tone voice. And she goes back to the daily topic about her obsession while walking to her lounge.

…I went to the lounge and MOO asked me to get a laundry pod and weighing scale upstairs. But in only brought the laundry pod because I did not find the scales. So that time MOO look for it and brought in the lounge area. When RR saw it, she get mad and shout that she doesn’t want to do it. She runs toward to MOO and grab the scale with a force.

I knew MOO get hurt because I heard the ‘Aww/ouch’. Then RR walked back with the scale and then MOO hits her on the back.”

“12.13pm

Good day to you EO,

I am writing this email to you due to the me incident What we witnessed this morning that involves service user and the night shift staff. My apologies but I can't remember that exact time it happened all I know was that it was around 7:30am to 8am.

When it was time for her weight to be checked, MOO went upstairs to get the weighing scales to weigh her, RR was very angry, screaming and shouting telling why she needs to check her weight today then RR suddenly ran towards her and tried to grab the scaled was there on the radiator side and I was not able to see the whole scene if RR really hits MOO on her arm , things happened so fast.

When RR turned around MOO ran after her and hit her on her back (left side upper part). RR went to TB's lounge to complain to TB staff then the TB staff eventually was able to encourage her to do it and RR finally agreed but insisted that she has to record it her self so, MOO gave her cellphone so RR can record it….”

BB and MJL went on to give further, more detailed accounts, over time to the employer which were equally consistent such as those given on 21 March 2023 [51]-[54].

In the transcript of BB’s fact finding interview dated 21 March 2023 at [51-52] BB stated: ‘So MOO asked RR to do the weighing and RR was very angry. So MOO went and got the weighing scales from upstairs and brought them downstairs. Eventually things all happened so fast. RR was starting to grab the scales from MOO and then I was on the radiator side…MOO is by the door (the door to the kitchen) and MOO is to the side of me and RR is on her sofa. She came straight towards us, she garbed (sic) the weighing scales but, I cannot remember whether she hit MOO’s hand/fingers or anywhere else. All I heard was an “ouch”….RR went to get the weighing scales, she went towards the door exit. At this time they had swapped places during the altercation. RR went to exit through the other door. RR had her back to MOO and this is when I saw MOO hit RR on the back. It was about two or three steps…(BB demonstrates a closed fist, and explains that it was on the pinkie side and explains that she saw MOO hit RR). It was a big punch to the back….My colleague challenge (sic) MOO and said that she had seen her hit her’ (Flag 10 – [51-52]).

In the transcript of MJL’s fact finding interview dated 21 March 2023 at [53-54]: ‘…Scale went with some force like this one (MJL described a hand and indicates the area between the thumb and the first finger to where the corner of the scales, caught MOO) But she didn’t hit MOO with the scale…I was in front of them at this point and I was looking at them…[MOO] stepped in and (maybe one step/two) and then hit her with her fist on her back, like this (MJL demonstrates with a clenched fist, on the pinkie side referring to the little finger, hitting RR on the upper back)…we heard a loud bang on the back…I just told to MOO “you just hit her”. When RR was in the lounge, I told MOO that you hit her…’ (Flag 11 – [53-54]).

EO’s notes of home visit by police dated 7 February 2023 [38] reveal that RR did make a direct and relatively contemporaneous complaint that MOO assaulted her: ‘The Police Officer asked [RR]if she was able to talk to him about what happened? [RR] explained that (“a staff member/name disclosed to the Police by [RR]”) had hit her on the back and that she did not like what happened to her (sic)’ (Flag 3 – [38]). It is unlikely that EO made a false note of the meeting between RR and the police or ‘filled in the gaps’. The motive for EO to lie (because MOO says she complained about EO’s use of Whatsapp groups) is not a likely explanation. It is not likely EO would associate herself with a conspiracy by two other members of staff, BB and MJL, to pursue a false allegation against MOO.

Furthermore, there is the handwritten signature of RR [37] in the police officer’s notebook beside RR’s statement that ‘I do not wish to take further action. I don’t want that person to get into trouble. I don’t want to blame her for it.’ This is beside the signature of RR’s father underneath the statement ‘I do not wish to support police action. We are aware that RR does have challenging behaviour at times. This has been less over recent months. We don’t wish to take further action.’ This evidence plausibly supports a reason why RR did not wish to pursue a complaint.

The suggestion by MOO that BB and MJL might have been motivated to lie because of a remark she made about women of Filipino heritage being ‘of average height’ (MOO representations – [77] and oral evidence) is highly unlikely and implausible. It is hard to see what is even offensive about suggesting that women of Filipino heritage are of average height, let alone sufficiently so to prompt them to conspire with a colleague to falsely accuse someone of hitting a service user. It is also unlikely that they would both spontaneously seize on the incident to fabricate a false allegation immediately at the time.

In so far as MOO also appears to suggests that BB and MJL might have been motivated to lie because they did not intervene to assist MOO during the incident in question, the observation is made that in their fact finding interviews BB and MJL were both perfectly open about not having intervened. MOO accepts that BB and MJL were present in the room when the incident with RR occurred (MOO representations – [76] and in all of her evidence).

MOO does not appear to dispute that MJL accused her then and there of hitting RR, saying only that this did not register at the time: ‘I did not even register the comment made from one of my work colleagues who said she spoke to me and stated “you just hit her”’ (MOO’s oral evidence and response to Minded to Bar letter – [76]). This was a contemporaneous exclamation by MJL that she saw MOO hit RR and it supports the truthfulness and accuracy of MJL’s later formal report of this.

MOO accepts that it is ‘probable’ or ‘possible’ that she ‘made contact with RR’s back’, but insists that such contact was ‘unintentional’ (her oral evidence and MOO response to Minded to Bar letter – [77]). MOO has described in writing her hand movements as follows: ‘I remember raising my hands to protect my face and stomach whilst walking towards the table to grab the scales…The reason I stretched out my hands was to try to protect my stomach whilst I quickly rushed towards the table to grab the scales’ (MOO response to Minded to Bar letter – [76]). It is hard to see how MOO raising her hands to protect her face/stomach whilst moving towards RR to take the scales from her could result in her making contact with RR’s back. This aspect of MOO’s response to the DBS’s finding, and oral evidence, suggests she may have hedged her bets in relation to BB and MJL’s clear and consistent evidence of seeing her hit RR’s back. However, it is also inconsistent with her initial account that she made no contact with RR’s back and is also inconsistent with her primary account that BB and MJL are lying rather than mistaken as to what they may have seen. A reasonable inference is that MOO is prevaricating and that MOO is not prepared to ‘nail her colours to the mast’ (BB and MJL ‘maliciously instigated allegations against [her]’ as opposed to BB and MJL have mistaken MOO making inadvertent contact with RR’s back for a deliberate punch).

The absence of visible bruising on RR’s back does not assist as to whether MOO struck RR’s back or not, given the many variables in play when it comes to the development of visible bruising.

RR’s parents were not present when the events occurred and as such the position they have adopted in relation to MOO is of no real utility when it comes to resolving the evidential dispute in question. This is particularly so since RR striking MOO with the scales and MOO striking her back are not mutually exclusive occurrences. The same applies to the voicemail from the team leader Z.

It is not a surprise that RR did not initially volunteer or report to her parents that morning that MOO hit her but instead volunteered and admitted to her parents that she had hit MOO. As we have found, it is likely RR had hit MOO with the scales first and RR admitted as such to her parents. RR accepts in her written statement that she did not want to get MOO in trouble, and RR was probably more worried about being in trouble herself. This is unsurprising in the circumstances.