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The incident on 5 February 2023
The incident on 5 February 2023
On Sunday 5 February 2023 the manager, EO, got notification of the incident at the Home when she was not on site. It involved a member of staff and a service user. It was reported to EO that MOO had struck a vulnerable adult service user, RR, at the Home.
What occurred during that incident is the subject of the DBS finding of relevant conduct in the Decision. That finding is disputed by the Appellant. Therefore, our findings of fact regarding the incident are set out in a later section of this decision.
The same day, 5 February, EO contacted MOO by phone regarding a pending investigation with possible suspension from work.
Having left work, MOO visited L Hospital for attention to the pain she was experiencing on the chest, arm and wrist. MOO attributed the pains to the service user, RR, hitting her with an object.
At 12.34 p.m. MOO asked EO for more information about what she was going to be investigated for and expressed surprise there was no enquiry into her safety and well-being because MOO said she had been hit twice with a weighing scale.
An email was sent from EO to MOO at 2.36 pm that day confirming her suspension fromwork. MOO was informed that she was also withdrawn from the WhatsApp Staff Group Chat.
MOO sent an email to EO that evening which referred to RR declining a routine weight check and striking MOO on the body before dropping the scales and walking towards another service user’s area. In the email MOO told EO that when one of the day staff informed MOO she had hit RR, MOO denied it. The other day staff was said to be on her phone at the time of the incident.
- 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