Brown v Secretary of State [2005] EWCST 680(PVA) (7 April 2006)

Jane Brown
-v-
Secretary of State

[2005] 580.PVA
[2005] 581.PC

Before:

Andrea Rivers
Janice Funnell
Lydia Gladwin

7th April 2006

      The Application
1.	This was an appeal against decisions of the Secretary of State to include the Appellant’s name on the PoVA and PoCA lists, as well as the list held under S142 of the Education Act 2002, known as List 99. These decisions were communicated to her by letters dated the 25th August 2005.	

2.	Her inclusion on the list followed a referral by her employers, Octavia Housing and Care (“Octavia”) who had dismissed her from her job as a Senior Care Assistant, for sleeping during night shifts.

3.	The Appellant appealed to this tribunal against the decisions to include her name on the lists on 30th October 2005. She indicated on her application form that she wished her appeal to be determined on the written evidence alone and the Respondent did not object to this.

      The Evidence
4.	Most of the evidence before us came from Octavia. They provided: four witness statements from their employees; documentation, including supervision notes; information about the Appellant’s job description and duties; notes of the disciplinary proceedings, and correspondence in relation to the dismissal.

5.	We were also shown documentation from the investigation carried out by the Protection of Vulnerable Adults Team at the Department of Health prior to the listing decisions being made, including representations made at that time by both the Appellant and Octavia.

6.	By contrast, there was very little evidence from the Appellant. Following her suspension from work on 6th August 2004 she had not participated in the disciplinary proceedings despite being invited to do so. During the period when she been included on the lists on a provisional basis, pending the investigation into her case, she had written two letters, each several pages long, putting her side of the story, to the manager of the PoCA list. Apart from this, the only representations made to this tribunal in support of her appeal, consisted of two short paragraphs, one in relation to the PoVA list and the other in relation to the PoCA list.

7.	This was despite the fact that she been asked, in a letter dated 2nd December 2005, to provide further information in accordance with the Regulations. In addition, the President of the Tribunal had issued directions on 9th February setting a date for consideration of her appeal and ordering the Tribunal to send her the statements and documentation that the Respondent had submitted and to seek “a response from the Appellant, by way of a witness statement and any documents she wishes to serve by March 23rd.” A further deadline of March 30th was set, to allow the parties to serve any further written evidence, if they so wished. Despite these invitations to submit evidence or make representations she has not communicated with the tribunal in any way whatsoever since issuing her appeal application.

      Preliminary Considerations
8.	We were concerned that the Appellant had played so little part in these proceedings. She did not appear to have taken any legal advice, despite the seriousness to her of an unfavourable outcome, and her representations, such as they were, were rambling and scarcely addressed the relevant issues.

9.	We considered whether or not to direct an oral hearing, pursuant to our powers under Regulation 6(3A) of the Protection of Children and Vulnerable Adults and Care Standards Regulations 2002	, notwithstanding her preference for a paper hearing. This would have given us an opportunity to hear from her ourselves and would have provided a less one-sided picture of the facts. However, we decided that even if we were to do so there was a strong likelihood that she would not attend in view of her previous history of non-participation.

10.	We also considered whether to draw any adverse inference from her decision not to appear before us. In our view any such inference would be mere speculation. It may well have been that she was reluctant to undergo questioning but this could have been simply because she felt intimidated by formal proceedings rather than because she felt that her case was weak.

      Factual Background
11.	According to Octavia’s evidence the Appellant began working for them on 19th May 2003. Her line manager was Jimmy Grace. Following a two week induction programme which she completed successfully she was sent to work at Miranda House, a residential facility on three floors with twenty flats for elderly, vulnerable residents with varying care needs. Some were mobile while others needed lifting by hoists. Some suffered from dementia and might be found wandering through corridors and common parts in a confused state. 

12.	The Appellant was employed as a Senior Care Assistant (nights), working with and supervising a more junior colleague on a waking shift. According to her job description she was to carry out three hourly checks on residents throughout the night although another document, headed “Working Night Information Guideline” said that the checks were to be made half hourly. This document clearly stated that Care Assistants were “on no account to sleep on shift” adding “Remember it’s a night waking shift”. It listed a number of night shift duties, including “supporting residents with cooking” in their own flats, watering plants in the garden and picking up paper from flower beds, as well as ironing. The Employment Handbook included “Sleeping on Duty” in a list of offences which amounted to gross misconduct, warranting “dismissal without any previous warning.”

13.	Notes of regular supervisions and probation reviews by Jimmy Grace show that her work was generally considered good, apart from concerns about poor timekeeping. There are a number of reminders, both in these notes and also in diary entries addressed to all staff, that sleeping on night shift is unacceptable. 

14.	On 26th September 2003 Jimmy Grace had a meeting with the Appellant. He told her that he had found a sleeping bag in her locker. She said that it was a sheet “to put over her legs at night” but he told her “it is a sleeping bag and has a zip around the edge” and said she was to remove it and take it home.

15.	The Probation Period Review dated 11th November 2003 also has the following note: “Suspected Sleeping. Issue around night shift – this has been discussed with Jane and she is quite clear sleeping is not acceptable during her shift.”

16.	Her 6 month probationary period was extended for a further 3 months and was successfully completed on 23rd February 2004. The Probation Period Review notes were very positive about her work. Jimmy Grace observed that “Jane has settled into her role well and now runs the shift well and has addressed whatever teething problems there were in the first six months…..I am now confident that Jane can lead staff in a confident manner”.

17.	On 16th April 2004 the Appellant took sick leave because of a problem with her knee. In a letter from her to the PoVA list manager, dated 30.11.04 she wrote as follows:

      “I had a fall and injured my right knee. I was at home with the swollen knee for  
       over 3 months. I started doing overtime (day shift) for Jimmy Grace with my knee  
       problem limping yet covering when staff is needed during the week days”

18.	In a letter dated 25.4.05 she further wrote:

      “I incurred a knee injury early 2004 and on referral to the Bones Consultant who   
      told me after Xray that the only solution is Knee Replacement surgery. My world 
      fell apart because I have worked all my life and the thought of this drove me 
      insane…I was limping to work despite the pain until my knee got worse and was 
      off work for almost 3 months…the long stay at work made me depressed and 
      suicidal so I got to work without the OK from the doctor. I was limping and in 
      great pain but I put the love of my job before my health to ease my depression."

19.	She returned to work on 12th July 2004. There was a supervision on 23rd July at which a number of concerns about her work performance were raised. Jimmy Grace asked her to work with Arian Roshan, another senior care assistant so that Jane Brown could observe the way she managed the shift. He said, “This is how I as manager want your shift to be run”. He asked about her foot and she told him it still hurt a bit. He told her that she “should not have returned to work if she was not fit to do the job.”

20.	On 31st July Sue Rose, Octavia’s Care Services Manager, received a typewritten note from Arian Roshan. It is clear that English is not her first language and it begins:

     “As Jimmy ask me to write report to you about night duty on 30/7/2004.”

She goes on to list three complaints about Jane Brown on that day: first that she had left a garden door open, secondly that she found her snoring in the office and thirdly that she had found her sleeping on a chair on the second floor.

21.	On 6th August Sue Rose told Jane Brown that she was suspending her from duty because of the allegation that she had been sleeping on duty. She was told to collect her personal belongings from her locker and according to Sue Rose these included slippers and a sleeping bag. 

22.	On 12th August Sue Rose had a meeting with an agency care worker, Hannah Dunkley,  She asked her if she had “observed Jane sleeping whilst on shift” and Hannah Dunkley said that on two occasions she had found her sleeping in the office. 

23.	On 27th August, following disciplinary proceedings, the Appellant was dismissed. Despite being informed of her rights to attend and make representations she played no part in these disciplinary proceedings. On August 31st Octavia wrote to the Manager of the PoVA list, giving details of the dismissal and on 22nd October the Appellant was provisionally included on the three lists pending an investigation in which she did participate.

24.	She claimed in her letters to the manager of the PoVA list that she been unfairly treated by Sue Rose in a previous job with Hammersmith and Fulham, implying that Sue Rose was biased against her. She said that Hannah Dunkley had only made allegations against her because Sue Rose had threatened to put her name on the PoVA list if she did not do so. She also complained about unfair treatment from Jimmy Grace. In her second letter she admitted to having been found sleeping by Arian Roshan. She said that she had taken a painkiller that night without realising that it contained a sedative and had slept for about 35 minutes.

25.	Sue Rose responded to the allegations against her personally in her statement.  She said she had never worked for Hammersmith and Fulham and that she had not threatened Hannah Dunkley. 

26.	In his statement Jimmy Grace said that he felt he was very supportive to the Appellant and that he had tried to be flexible and understanding. He did not deny using her to cover for day staff when she returned from sick leave, in addition to her night shift duties.

      Findings

      Suspected sleeping prior to July 2004
27.	Diary notes, supervision reports, probation reviews and instruction sheets all contained repeated reminders both to the Appellant and to other staff, that they were not to sleep on duty which suggests to us that this was a general problem.

28.	Although there are no specific occasions when it is said she slept on duty prior to July 2004 the Appellant does not deny that she kept some sort of cover in her locker, described variously as a sleeping bag, sheet and throw. She did not take it home when asked to do so and it was still there when she was asked to remove her belongings. 

29.	We find, on balance of probability, that she kept it in her locker for the purpose of sleeping and that she did sleep on duty prior to July 2004.

      Allegations of Arian Roshan
30.	We find, as alleged, that the Appellant was found sleeping on two occasions on July 30th 2004. Indeed she herself admits falling asleep once that night.

      Allegations of Hannah Dunkley
31.	We find, as alleged, that she was found sleeping on two occasions by Hannah Dunkley. Even if Hannah Dunkley was reluctant to inform on a colleague and only did so when prompted, we do not believe she simply made up the allegations. 

     The Law
32.	S86(3) of the Care Standards Act 2000 states that:

     “If on an appeal or determination under this section the Tribunal is not satisfied of 
      either of the following, namely –

     that the individual was guilty of misconduct (whether or not in the course of his 
     duties) which harmed or placed at risk of harm a vulnerable adult; and

     that the individual is unsuitable to work with vulnerable adults,

     the Tribunal shall allow the appeal.

     Thus there is a three stage test:

Was the Appellant guilty of misconduct?
33.	In Angella Mairs v Secretary of State [2004] 269.PC the tribunal gave the following definition of misconduct:

    “In principle, a single act of negligence could constitute misconduct but in most 
     cases the misconduct will be an incident forming part of a course of erroneous or 
     incorrect behaviour undertaken by a person who knew or ought to have known that 
     what he or she was doing was contrary either to the general law or to a written or    
     unwritten code having particular application to his or her profession, trade or 
     calling….”

34.	We find that the Appellant was undertaking a “course of erroneous and incorrect behaviour” by sleeping on waking night duty. She had been repeatedly reminded that this was unacceptable to her employers and contrary to their clear written and verbal instructions. 

35.	We therefore find that she was guilty of misconduct.

Did the misconduct harm or place at risk of harm a vulnerable adult?
36.	Many of the residents required a high level of care and no doubt emergencies arose from time to time. Although there is no evidence of harm coming to any vulnerable adult due to the Appellant sleeping on duty it must be the case that she would have been slower to respond to any such emergency and less vigilant to anticipate danger. 

37.	However, the risk could not have been great. Had it been so her employers would not have allowed her to continue working for them between May 19th 2003 and April 12th  2004, since it  is clear from their evidence that for much of this time they suspected her of sleeping on duty. Yet apart from warnings and an extension of her probationary period, no disciplinary action was taken. It was only when she returned, prematurely, from sick leave and was unable to do the job properly that they solicited evidence from fellow employees that she had been found asleep on a number of occasions. 

38.	Although they expressed concern that she was not well enough to return to work they were content to employ her to cover for absence during the day as well, which must have increased the possibility that she would be too tired for the night shift. Presumably they would not have done this had they felt that they were exposing residents to significant risk.

39.	As stated above, the duties expected of night staff also involved helping residents to cook in their flats, ironing and going outside to deal with plants and collect litter. They would inevitably have been slower to respond to emergencies when attending to these additional duties. 

40.	We therefore find that such risk as there was could not have been a serious one and that insofar as there was a risk the employers must share responsibility for it. 

Is she unsuitable to work with vulnerable adults?
41.	In the light of all these findings we do not consider that vulnerable adults are likely to be at significant risk from her or that it is necessary that she be prevented from working with them by including her name on the PoVA list. We do not find her unsuitable to work with vulnerable adults. 

      Decision
42.	Accordingly we allow her appeal against the inclusion of her name on the PoVA list.

43.	Equally, and for the same reasons, we do not consider her unsuitable to work with children and we also allow her appeal against the inclusion of her name on the PoCA list and, in consequence of this, on List 99.

44.	It is our unanimous decision to allow both the Appellant’s appeals.

Andrea Rivers (Chairman)
Janice Funnell
Lydia Gladwin