Care Sector Alert - Summer 2012

Considering dismissal? The employment law minefield

The serious abuses and poor standards of care uncovered by the media and subsequently investigated by the Care Quality Commission ("CQC") at Winterbourne View and Ash Court demonstrate that, sadly, mistreatment of care home residents continues to be a common news headline. For employers this can lead to difficult and sensitive investigations and the potential dismissal of care home staff or care home managers. In such circumstances employers need to be very careful to ensure that they comply with the law and correct procedures to avoid being faced with a claim for unfair and/or wrongful dismissal.  The successful claim for unfair dismissal brought bySharon Shoesmith against the London Borough of Hackney, following the Baby Ptragedy, demonstrates that knee-jerk reactions to calls to action can sometimes be misplaced. When considering dismissal of an employee, employers should take into account the following: 

• Fair reasons for dismissal : To dismiss an employee lawfully, there must be a fair reason for dismissal.  Allegations of abuse would be categorised as misconduct, which is a potentially fair reason for dismissal. 
• Fair procedure : Employers must follow a fair procedure before deciding whether or not to dismiss an employee.   In cases involving misconduct and poor performance, employers must follow the ACAS Code of Practice on disciplinary and grievance procedures, which sets out certain key steps that must be taken to deal with a disciplinary matter fairly. These steps include the employer acting promptly, avoiding unreasonable delay and carrying out an investigation of the facts.  Employees should be informed of the allegations against them and be given an opportunity to state their case, normally by attending a face to face meeting with their employer.  Employees also have the right to be accompanied at any formal disciplinary or grievance meeting and should be given the right to appeal against any formal decision.  A finding of unfair dismissal can lead to a substantial award of compensation and a failure to follow the ACAS Code can potentially lead to a Tribunal imposing anuplift of up to 25% to the amount awarded.
• Police investigations: Where there is a pending or ongoing police investigation, employers are often unsure whether they need to wait until those investigations are concluded before taking any action.  Small employers in particular may face a real dilemma if they have to wait a long time for police investigations to be concluded.  There are no hard and fast rules about this but in some cases it may be appropriate to conclude internal investigations and what is reasonable will depend on all the relevant surrounding circumstances.  Most importantly, if an employer decides to proceed with internal investigations a thorough investigation must be carried out and the employee must have the opportunity to respond to the allegations facing them.
• Is suspension appropriate?  In instances of serious misconduct, an employer may consider suspending the employee, for example where there is a potential threat to the business or other employees.  In abuse cases the concern is likely to be further mistreatment of care home residents.  Suspension is a serious step and thought needs to be given as to whether it can be avoided. For example, would it be possible to place the employee in another area of the business whilst the investigation is carried out? A "knee-jerk" suspension where the employer has failed to consider whether it can be avoided may be a breach of mutual trust and confidence by the employer.
• Acting reasonably: The employer must act reasonably in treating the misconduct (or other reason for dismissal) as a sufficient reason for dismissal.  What is reasonable will depend on all the relevant circumstances of the case, including the size and administrative resources of the employer and any justification or extenuating circumstances put forward by the employee. The greater the resources of an employer, the greater the expectation that it will apply policies correctly and the more likely it is that a failure to do so will be unreasonable.
• Notice and other steps: Except in cases of gross misconduct, employees must be given adequate notice (or paid in lieu of notice).  The employer must also provide the employee with written reasons for their dismissal.
• Discrimination: Throughout this process, the employer must be careful not to discriminate or harass the employee for reasons, such as their age, disability, pregnancy, race, religion or belief, sex or sexual orientation.

If the dismissal is of a registered manager, there will also be additional steps to be taken to comply with the CQC's regulatory requirements.  The employer will need to appoint a new registered manager, who will be required to apply to register with the CQC and demonstrate their fitness to carry out the role. Employers should also be aware that it will be the dismissed registered manager's responsibility to submit an application to the CQC to cancel their registration.  An employer cannot cancel the registration of a registered manager on their behalf, but they will be required to make a statutory notification to the CQC regarding the change.  An employer may face difficulties in circumstances where a registered manager has left the business and is non-contactable or refuses to cancel their registration.  In such a scenario, an employer will need to inform the CQC and is likely to be required to demonstrate efforts made to contact the outgoing registered manager before the CQC will consider allowing a new registered manager to be appointed.

Contributed by Clare Parkinson, Solicitor 0161 200 1796 and Joanna Shaw, Associate 0161 200 1774.

Sector publications and news

South Gloucestershire Council's review into Winterbourne View
South Gloucestershire Council, 7 August 2012

South Gloucestershire’s multi-agency Safeguarding Adults Board (SAB) has published the independent Serious Case Review into the events at the Winterbourne View private hospital.

Care assessments to be outsourced under White Paper plans
Community Care, 11 July 2012

A Government White Paper has proposed appointment of principal social workers in every council and consults on giving practitioners the power to enter homes if they suspect abuse.

Safeguarding boards told to publish more child protection reviews
Community Care, 13 June 2012

Draft Department for Education guidance has been published which would require safeguarding boards to review more child protection cases and publish the results, even when serious case review thresholds have not been met.

Baby Peter social workers lose sacking appeal
BBC News, 25 May 2012

Haringey Council workers Gillie Christou and Maria Ward have lost their appeal against an employment tribunal ruling that they were fairly dismissed.

Test case could outlaw critical threshold for adult care
Community Care, 21 May 2012

Following a challenge by five severely disabled persons in the High Court, councils could be prevented from only funding service users' critical care needs under a test case that could result in thousands of older and disabled people gaining access to care.

Regulation of social workers transfers to the Health and Social Care Professions Council
HCPC, 1 August 2012

The HCPC (formerly the Health Professions Council) has assumed responsibility for the regulation of social workers in England, from the General Social Care Council (GSCC) which was abolished on 31 July 2012.

First Tier Tribunal for Health Education and Social Care

H A-H v Ofsted (2012)
2012 1958 EY-SUS

Ms A-H challenged a decision made by Ofsted to impose an interim suspension on her registration on 12 March 2012. Ofsted had received information from an enhanced Criminal Records Bureau (CRB) check in relation to one of Ms A-H's family members, that her son (Y) had a conviction for manslaughter. Ms A-H provided child care services from her home address and Y lived at the same address. Ms A-H accepted that she had failed to notify Ofsted that Y had moved into her home.  Ms A-H had exercised her right to apply for a waiver of the decision to suspend her registration, but the Waiver Panel was unable to reach a decision because a further CRB check in respect of Y had not been completed and full details of his conviction were not available.  Ms A-H subsequently brought an appeal against the decision to suspend. The Tribunal concluded that there was reasonable cause to believe that continued child care by Ms A-H could expose children to a risk of harm and there was insufficient factual information to assess the risk in the absence of a CRB for Y. In addition, it was noted that Ms A-H had not informed Ofsted that Y was living with her and there was a possibility that she was trying to conceal information. The appeal against the interim suspension was therefore dismissed.

Mr Yury Kazlouski v Care Quality Commission (2011)
1927. EA

The CQC's decision to refuse an application by a Nurse (Mr K) to be registered as the manager of a Registered Home was appealed. The decision had been made with reference to Sections 14 and 15 of the Health and Social Care Act 2008, which set out the criteria for the grant or refusal of registration.  as well as the requirements under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010.   The CQC's decision was made on the basis that Mr K had not given full reasons for two previous dismissals from employment in care homes, which related to Mr K being over-familiar with two residents and throwing a glass of squash over another resident. The Tribunal concluded that Mr K was not fundamentally dishonest and he had recognised his obligation to disclose matters fully. The Tribunal determined that without a finding of dishonesty, there was little material to show that Mr K should not be registered; through his evidence Mr K had demonstrated qualities which could allow him to be an excellent manager and they were satisfied that he was a fit person to be a registered manager. It was therefore unanimously decided that the appeal should be allowed and the CQC's decision should have no effect.

Oluku  v Care Quality Commission (2012)
1913.EA

Ms O joined Dormers Wells Lodge residential home as a Manager in September 2004. Video footage taken by a carer at the residential home in 2010, revealed a number of instances of poor care and abuse. This led to the suspension and prosecution of a number of staff. The footage was subsequently passed to the CQC which led to the cancellation of Ms O's registration on 24 August 2011 as she was found not to be a registered manager.  The reasons given for cancellation were failures to: ensure the welfare of service users and the provision of appropriate care; safeguard service users from abuse; properly manage medicines; or provide adequate staff.  Ms O appealed against this decision stating that the allegations were not directly attributable to her and she was not supported by staff. The Tribunal concluded that Ms O's skills were deficient in being able to deliver all areas of individual care necessary and  she was not fit to be registered as a Manager. In particular, the Tribunal stated that, despite some of the alleged failures occurring before the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 came into force in October 2010, under Regulation 6 any conduct alleged to demonstrate either the skill or lack of skills may be drawn from any time in the past, its relevance being affected by how long ago it is. The Tribunal decided that the appellant did not have the necessary skills to establish fitness under Regulation 6(2).

Dr Michael Diago Noronha v NHS Trafford (2012)
PHL 15465

Dr Noronha challenged a decision made by the Trafford Primary Care Trust (PCT) to refuse to enter his name onto its Medical Performers List (MPL) following his application on 14 November 2011. The decision was made on two grounds; firstly, the failure to provide satisfactory evidence, under Regulation 6(2) (a) of the National Health Service (Performers' List) Regulations 2004 of his intention to undertake the majority of his work in Trafford; and secondly, failure under Regulation 4(2) (f), to provide two clinical references from referees who had worked with Dr Noronha recently and were able to complete the forms fully. On appeal, the decision of Trafford PCT was upheld on the basis of Regulation 6(1), as the Tribunal considered Dr Noronha to be unsuitable to be included on the MPL and they were not satisfied with the references provided. It was also determined that Dr Noronha had not provided an appropriate explanation of his previous removals from Warrington MPL in February 2007 and October 2010 on his application, as was required by Regulation 4(2)(h). The Tribunal also noted that there was no right of appeal against a decision made under regulation 6 (2).

Independent Safeguarding Authority

ISA identifies 'warning signs' to help employers recognise and prevent abuse in the workplace
Independent Safeguarding Authority, May 30^th 2012

The Independent Safeguarding Authority has delivered a piece of research identifying a number of ‘warning signs’ exhibited by some employees prior to their referral to the ISA, aiming to inform employers about the importance of good safeguarding practice.

Legislation

The Health and Social Care Act 2008 (Regulated Activities)(Amendment) Regulations 2012

These Regulations amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010, which prescribe regulated activities for the purposes of registration for the provision of health or social care. The amendments include allowing 'partnership' service providers to meet the fitness requirements collectively rather than individually, ensuring service providers have suitable arrangements in place where the service user lacks capacity to consent to care and treatment and requiring the Secretary of State to review the operation and effect of the Regulations and publish a report.

For further information please contact Graeme Payne, Partner or Sarah Ellson, Partner at Fieldfisher.