A care home assistant manager who was sacked without a proper investigation and who was not told what she was accused of was wrongfully dismissed, a tribunal has ruled.
The Watford tribunal concluded that Really Flexible Care “failed to take its responsibility seriously and fairly” in respect of the harm to Ms D Del Campo's career.
The decision to dismiss and failure to launch its own probe, according to employment judge Dilbaag Bansal, went “far outside the range of responses open to a reasonable employer", and the dismissal was "substantively and procedurally unfair".
Bansal also said the tribunal was not convinced that Really Flexible Care had "adduced evidence" to prove that Del Campo was in breach of contract and that the allegations for which she was dismissed had not been proven.
The claims for unfair and wrongful dismissal were successful.
A hearing on the remedy has been scheduled for a later date.
Background
The tribunal heard that Del Campo was employed as a support worker initially on 16 January 2017 at Wadelow Grange care home, near Tingrith, Bedfordshire, but was promoted to deputy manager and was based at Avon House in Bedford from 7 July 2019 until her dismissal on 8 May 2020.
On 19 March 2020, Del Campo was called to a face-to-face meeting and suspended on full pay by Miss J Smith, Really Flexible Care’s multi-site registered manager.
Smith told the tribunal that on March 19, 2020, she received a phone call from a member of the Bedford Borough Council safeguarding team informing her that it had received a complaint about Del Campo “verbally abusing residents, bullying staff, falsifying records and [making] medication errors”.
The safeguarding concern was raised by the mother of a service user at Avon House who had informed the council that she had received an anonymous call from a carer who was concerned for the welfare of her child.
Smith then informed Del Campo that the anonymous call had been received and that she was suspending her and required her to leave the care home.
In evidence submitted to the tribunal, Smith said she gave Del Campo the full details of her suspension. Del Campo disagreed with this.
The tribunal heard that despite Del Campo’s work history including some historic complaints about her conduct with staff members, her documents relating to her supervision sessions with her line manager showed positive feedback with no concerns. At the date of dismissal, Del Campo had a clean disciplinary record.
The tribunal noted that Really Flexible Care did not disclose a copy of the suspension letter and added that Del Campo was "adamant" that she had not received any correspondence. Smith said that, after suspending her, she informed Mr Gohel, the HR manager, of her suspension and that he would have sent the suspension letter.
In testimony, Gohel said that he issued a suspension letter, but could not find it on his computer system. But the tribunal decided that no suspension letter was "prepared or sent to Del Campo", as she would have received it if it had been sent, it concluded.
The tribunal further ruled that Really Flexible Care would have a copy on file, either in print or electronic form, and that they could have produced metadata from the computer or laptop used to prepare the letter, but the company did not.
The tribunal decided that Del Campo's evidence that she was not fully informed of the details of the anonymous complaint was preferable.
The safeguarding investigation and report
The complaint against Del Campo triggered a safeguarding investigation by the borough council.
It was set up to establish whether the service user was subject to psychological and emotional abuse.
The investigation included interviews with current employees, agency workers and some ex-employees, as well as Del Campo and her line manager.
As part of the inquiry, the police were informed.
The tribunal heard that: “From a police perspective there was no evidence that a criminal offence had been committed and they ceased their involvement in this safeguarding inquiry.”
A report was issued on 19 May 2020. The outcome of the investigation was that the allegation of psychological and emotional abuse of the service user was unanimously upheld.
Employer’s actions
On 20 March 2020, Del Campo texted Smith about her coworkers contacting her about her suspension, which she assumed would be “confidential”. Smith informed her that the workers had not been told anything and were unaware of her suspension.
On May 5, Del Campo reported that shortly before being informed of her dismissal, she received a call from the director of Really Flexible Care, who told her to "resign otherwise she would not be able to work in care again".
Del Campo and Smith exchanged text messages on the same day. Del Campo sent the first text at 2.26 pm, saying: "Hello, sorry to bother you, please is there any update yet? Thank you very much."
Smith replied: “Hello, unfortunately, the findings and meeting have found the alleged abuse to be upheld, meaning true and multiple concerns. This does mean you cannot return to work at present until our employment law service gives further guidance on the next steps. I’ll contact you regarding the next steps this week.”
She added: “Hi, no we can’t share the investigation report from safeguarding when it’s received as it is confidential. The main outcomes of the meeting will be shared with employment law and it will be recorded on disciplinary records though you can see unclassified reasons.”
On May 8, Del Campo was summarily dismissed and given the right to appeal, in a letter drafted and sent by Gohel.
In the letter, Gohel said: “I have decided that your conduct has resulted in a fundamental breach of your contractual terms which irrevocably destroys the trust and confidence necessary to continue the employment relationship. You are therefore dismissed with immediate effect.”
Judge’s comments
Judge Bansal said Del Campo was not informed of the precise details of the complaints against her, was not given an opportunity to challenge the allegations and make her own representations and the evidence provided was limited to the report, which Del Campo had “no opportunity to challenge”.
He added that the care home group “acted in contravention of its own disciplinary procedure, the Acas code and rules of natural justice”, saying that the claims against Del Campo were “potentially career-ending”.
The judge said that Really Flexible Care's failure to conduct any investigation is a “fundamental flaw” that renders the dismissal unfair, citing the fact that no company disciplinary process was conducted.
Judge Bansal further stated that the dismissal decision and failure to follow any procedure are “not within the range of responses open to a reasonable employer in the circumstances of this case”, concluding that Del Campo's dismissal was "substantively and procedurally unfair”.
Employment lawyer’s reaction
Dawn Dickson, partner at Anderson Strathern, said that the case demonstrates a “fundamental error that employers often make” when the disciplinary matters they are considering are also subject to investigation by another body – for example the police or a regulator or even an overlapping grievance.
Dickson said that, although a grievance process or an independent body may be investigating the same matters, which are subject to future disciplinary proceedings, this does not excuse an employer from the requirement to carry out a second investigation.
She said: “It requires a reasonable and full investigation into the matters, which may be taken forward to a disciplinary hearing.”