DECISION

Case No: [2009] 1686.PC 1697.PVA		

THE FIRST TIER TRIBUNAL (CARE STANDARDS)

BETWEEN

					SHARON OBUOBIE
Appellant

-AND-

THE SECRETARY OF STATE FOR HEALTH
Respondent

Before: 	Tony Askham (Tribunal Judge)
		Marilyn Adolphe 
		Jim Lim 

 Dates

27, 28 and 29th July 2010.

Appeal

Ms Obuobie appeals under Section 86 of the Care Standards Act 2000 against the Respondents’ Decision dated 30 June 2009 to confirm her inclusion on the Protection of Vulnerable Adults (POVA) List and the Protection of Children Act (POCA) List.

Attendance

For the Appellant

Ms Shugufta Jabeen (Solicitor)

Appellant: Sharon Obuobie

Witnesses:
Eugenia Herlthy (28.07.19)
The Appellant (29.07.10)

For the Respondent

Denis Edmunds (Barrister)
Instructed by Tom Bullmore (for the Treasury Solicitor) 

Witnesses:
Nisha Cyriac (27.07.10)
Claire Stephens (27.07.10)
Frances Edmunds (27 and  28.07.10)

The Issues

The Appellant, who was employed as carer primarily working night shifts at Stonebridge Nursing  Home (the Home), was referred to the Independent Safeguarding Authority as a result of having been dismissed for gross misconduct for having been asleep on duty on the night shift  of the 22.5.08. 

The Appellant maintained in her Notice of Appeal, that she did not sleep whilst on duty.  In the circumstances the Tribunal, under Section 86 of the Care Standards Act 2000 has to be satisfied:-

a)	that the appellant  was guilty of misconduct which harmed or placed at risk of harm a vulnerable adult;
b)	that  she is unsuitable to work with vulnerable adults; and
c)	whether she is unsuitable to work with children.

The evidence

The Respondent’s witnesses

1.	We first heard evidence from Nisha Cyriac, who was employed as a staff nurse at the home from November 2004 to October 2008. She told us of how shifts worked at the home and the break system used during such shifts.  She said historically in the quiet time of the night carers would sleep, not during their break times and this had happened quite frequently.  The new owners had to put an end to such practices.

2.	Ms Cyriac told us that sleeping on duty worried her as the residents in the home would often walk round at night due to their dementia and staff therefore always needed to be available.  Her concern led her to complain to Julia Foley  the Nurse Manager of the home in June 2007 about problems with staff on night duty and in particular the appellant and one other carer.  She put this complaint in writing to Ms Foley in a letter dated the 18th of June, 2007.  In particular she complained that the appellant when working with her downstairs had started to sleep outside of her rest break.  At a formal investigation meeting on the 19th of June, 2007 the appellant denied the allegation and said she only slept in her rest periods.   She was suspended on full pay whilst the home fully investigated the allegations against her.

3.	 On 22 June, 2007 Ms Foley received a further complaint in writing from Diane Sola another carer.  These complaints related to the appellant.  The complaint related to alleged poor practice of the appellant and included an allegation that on several occasions she had been asleep in the dining room whilst on duty.  It appeared that carers would sit in the doorway of the dining room when on duty on the ground floor at night so that they had an uninterrupted the view of the corridors.

4.	On the 2nd of July, 2007 Mrs. Edmunds the director of nursing at the home conducted a disciplinary hearing with the appellant.  She concluded that no disciplinary action should be taken because there may have been a difference in working styles and because there was no independent evidence of the complainant’s misconduct as to the various matters complained of and in particular the appellant  sleeping on duty.  It appeared clear that the appellant was the told at that hearing that that sleeping on duty was considered a very serious breach of contract and would lead to summary dismissal.

5.	We read the statement of Ms Foley, who was unable to attend to give evidence.  That statement dealt with the issues of the appellant's supervision meetings and appraisals which were good or satisfactory.  When she appraised the appellant on the 28th of January, 2008 she asked specifically if anyone was sleeping on night duty and the appellant replied “no”. She said that on unannounced visits at night conducted by her and Mrs. Edmunds’s three staff members (two carers and one nurse) had been found sleeping and were dismissed for gross misconduct.  She said that the home preferred staff not to take their breaks at their workstations but in the residents' lounge.

6.	In her statement she said that her she had been told of a number of occasions prior to the instance in June 2007 that the appellant had been sleeping on duty and this was not during a break period.  She said at the disciplinary hearing that the appellant was given a very stern warning about sleeping.  Thereafter she had said in a statement she was unaware of any further problems with the appellant until that she went on maternity leave in March 2008.

7.	Ms Stephens is a clinical nurse specialist who started doing agency work at the home in May 2008.  Ms Stephens is a clinical nurse specialist in tissue viability and she works in a research role.  She is an agency worker to keep up her clinical hours for her NMC registration.  She had a day’s induction in the home on the Sunday before she started her first night shift at the home on the 21st of May, 2008.  She first encountered the appellant in the home when there was an apparent accident in Lounge 2 and an elderly lady had slipped out of a chair and was on the floor. She said she saw the appellant trying to lift the lady back in to the chair.  She told us that the accident had happened when the lady was moving from the chair to a wheelchair which had been wrongly positioned and which did not have the brake on.   She told us of the appellant then throwing the resident’s doll on to a chair without any care which she considered displayed a lack of sensitivity and consideration for the resident, who regarded the doll as her child.   She then arranged to enter the accident in the home’s accident book.

8.	Later that evening in the company of a senior carer Diane Sola she had gone up the back stairs to check residents on the first floor and discovered that the appellant and one other carer asleep in comfortable armchairs with blankets on themselves and magazines in their laps.  She was stunned and shocked at this was before midnight.  She told us that that both carers only stirred when she spoke to them.  She told them she would be checking upstairs each hour.

9.	At 1.30 a.m. when she checked again she in told us that the appellant was again asleep.  She woke both carers up and asked about two residents and whether they had been checked. They were in the bedroom behind the appellant’s chair.  She said she had to step over the appellant’s stretched legs to get into that room.  A further visit by her at 2.00 p.m. suggested that the appellant was again asleep.

10.	The next morning she was concerned about the way the appellant was pushing a wheelchair through a number of residents without any regard to risk.

11.	Because of her own concerns about what had happened on the night shift she reported the incidents to the agency for whom she worked.  The agency in turn reported it to Mrs. Edmunds.  

12.	She was again the nurse in charge on the following night shift on the 22nd of May.  On commencing duty she noticed that the rota for the evening had been changed because of 2 sick patients on the ground floor.  As a result  the appellant  who it  had have been planned  would be working on the ground floor was in fact to work on the first floor and as a result her break period would change from 2.30 to 3.30 from 12.30 to 1.30.  This was noted on the white board in the main office.

13.	Whilst carrying out an inspection of the residents of 1.00 a.m. she had suspicions that the appellant was again asleep but could not be sure.  At 2.00 p.m. she saw both the appellant and Eugenia Herlthy and asked if the pad checks had been completed on the residents.  She was assured by them that they had done those checks but she found a resident whose bed was soaking wet up to the resident’s armpits and she instructed both of them to change the bed which she said they did willingly.

14.	She returned to the corridor area at 2.30 a.m. and found the appellant there. Ms Herlthy was not there as Ms Stephens understood she was on her break.  She said the appellant was asleep.  She went downstairs and got Diane Sola to accompany her to witness the situation.  They both saw the appellant asleep.  Diane called Mrs. Edmunds to report the situation and was told that Mrs. Edmunds was already on her way into the home and she had planned to carry out an unannounced visit as a result of what had been reported to her the previous morning.

15.	Ms Stephens told us that she met Mrs Edmunds in the stairwell and confirmed what she had seen and that the appellant was not on her break.  She said they both proceeded to the area where the appellant was, having gone through a fire door, they stood and watched the appellant asleep with her feet on another chair and covered by a blanket for some 2 minutes.  They went down to the office and at that stage Mrs. Edmunds sent for the appellant.

16.	Mrs. Edmunds, the director of nursing, told us of the difficulties in the home when the company of which her husband is the managing director, acquired it in October 2006.  One of the issues was staff culture and included in that issue was the consistent suggestion that care staff were sleeping on their night duty. .  She told us of the company's training procedures which had been introduced and the successful efforts to turn around the home.  We noted that the home at the time of acquisition the Home had been rated by the Care Quality Commission as 0, which is a poor rating and is now rated 3, which is excellent. .

17.	She confirmed to us the investigations that she had carried out in June 2007 and confirmed the outcome of those investigations and that the she had concluded that no disciplinary action should be taken against the appellant.  

18.	She then told us about the events of the 21st and 22nd of May, 2008.  As a result of the report which had been given to her by the agency that employed Ms Stephens she had decided to make an unannounced visit to the home on the night of the 22nd.  She was already on her way in, having made all the arrangements with her managers, when she received a call about the appellant being asleep from Diane Sola.  She gave identical evidence to that of Ms Stephens as to what happened on her arrival.  She told us that she was satisfied beyond all doubt that the appellant was asleep when observed by her and Ms Stephens close up: that Ms Herlthy was not present and the appellant was not on her break.  As to the latter she said she had inspected the white board in the office which showed the appellant’s break as 12.30-1.30. Mrs Edmunds when asked accepted that she should have woken the appellant up from her sleep and had thought about this ever since. It would have provided the evidence of Appellant being caught asleep.

19.	She confirmed that she had interviewed the appellant and suspended her from duties on the night of the 22nd and had carried out thereafter, a disciplinary meeting.  At the disciplinary hearing the appellant had denied that Mrs Edmunds and Ms Stephens had opened the fire door, moved closed to her and watched her sleep and vehemently denied she ever slept on duty.  Mrs. Edmunds said this appeared to be a contradiction to her approach when suspended which was that she was asleep at the time that but it was in her  break period which had changed from the agreed at 12.30 to 1.30 of the to 2.30-3.30 because  she had to work during a break period.

20.	She told us as to the issues about the resident falling out of the chair and as to pushing a  wheelchair through  the residents at breakfast time, she could not be satisfied that the events that occurred and that the appellant had in any way had been negligent or guilty of misconduct.  However she was more than satisfied that the appellant had been asleep when seen by her and Ms Stephens and she dismissed the appellant for gross misconduct as a result and reported it to the Independent safeguarding authority.

21.	She told us that while she was aware on taking over the Home of some inter staff concerns regarding the culture of the home, for example no structure, management direction or accountability but she had no evidence that they were racially motivated.  She referred to the record of disciplinary action which showed those dismissed and this indicated that there was slightly more English/white staff who had been dismissed as compared with those from ethnic minorities.  She said she was aware that she and the company had been accused of being a racist by staff but this had never been formally or informally raised with her or her management team in any way and she vehemently denied that that the dismissal of appellant was in any way motivated by ethnicity or race. .

22.	She told us that if the appellant had been asleep on a break period, although she should not have been having a break in the clinical area, it would not have been in her view an act of gross misconduct.  She said that although she had no reason to doubt the evidence of Ms. Stephens as to what had happened on the night of the 21st given it was her first night at the home, she felt the allegations of sleeping on the 21st and those on the 22nd until she herself witnessed them, were uncorroborated and without the last incident she might not have treated them as to has sufficient to dismiss the appellant.

23.	We heard evidence from Eugenia Herlthlly an agency carer who had worked at the home for six months from January to June 2008.  She worked regularly with the appellant and was working with her on the evening of the 22nd of May.

24.	She said she had worked with the appellant throughout the night duty period and the appellant had not slept at any time.  She was adamant that she had not taken a break that night and denied that Ms Stephens or Frances Edmunds had seen the appellant asleep at 3.O5.  When we asked her if she was saying they were lying she said yes.  She said she had never seen Appellant asleep on night duty her and worked with her on average twice a week.  

25.	She told us that all the full time staff at the home were prejudiced against black agency staff and although the appellant was a permanent member of staff she put her dismissal down as unfair and discriminatory. When we asked her why, Eugenia Herlthy was unable to explain the latter allegation.  She was equally unable to explain the staff rota for the night of the 22nd and when she and appellant were due to have their rest breaks.

26.	We read the evidence of Theodora Mudambanuki, who also had been an agency care worker at the home.  She said she had undertaken night work with the appellant on many occasions and never had seen her sleeping unless it was during a break period.

27.	Finally we heard the appellant's evidence.  Her evidence of can be summarised as dealing with three crucial matters.  First she repeatedly denied that she had ever slept during her employment at the home whilst on duty.  She denied that she was asleep on any of the occasions on the 21st of May.  She told us that she remembered that night well as it was a night when there was on television a match between Manchester united and Chelsea.  She said her fellow worker, Dora, that night was a Chelsea fan and had insisted they stayed in the lounge to watch the entire match which had gone to extra time.  As a result she said that they were very late putting residents to bed and it would not have been possible for Ms Stephens to have seen her asleep before midnight on that night.  This had never been put to Ms Stephens during her earlier cross examination. 

28.	As to the 22nd she denied being seen sleeping by Ms Stephens at 1.00 a.m. or 2.30 a.m.  After much questioning she reluctantly accepted that she might have been asleep at 3.O5 if she was indeed seen both by Mrs. Edmunds and Ms Stephens.  If that was the case she said it was because she was asleep on her break in which she maintained had been changed to 2.30 to 3.30.

29.	This second issue about the time of her break on the 22nd of May was covered at some length in her evidence.  She accepted that when coming on duty she had been asked to work again on the first floor and not the ground floor as had been intended and she accepted that as a result her break had been changed to 1.30 to 2.30.  She maintained that as she had worked through much of her break she could change to her break so that it was 2.30 to 3.30.  She accepted she had told no one that she was planning to do so but said it was common practice to change breaks between staff, without notifying the staff nurse in charge.  She maintained that Ms Herlthy had not taken a break that night at all and that she knew she had not been asleep earlier as she had been helping Ms Herlthy with an assignment for her NVQ.

30.	Finally her evidence dealt with her allegation that her dismissal was racially motivated.  She maintained that there was an element of racial discrimination against black and Asian staff in the home.  She maintained the person who had influenced the witnesses against her was Diane Sola who she accused of being responsible for inappropriate acts against residents.  She maintained Diane Sola had influenced the original allegations against her in 2007 and because she was working with Ms Stephens on the 21st and 22nd she had instigated the complaints which led to her dismissal.  She accepted in evidence that she had been treated fairly throughout by Ms Foley but continued to maintain that her dismissal was influenced by race.  Her written statement said that the home was prejudiced against her because of her race and they simply wanted to get rid of her as they had done to other black and Asian workers.

31.	She accepted however that Ms Stephens would not have been prejudiced as she had not worked in the home until the 21st of May but maintained she was influenced by Diane Sola in making the accusations.  Her evidence was moderated in this respect because she said that she was not implying that Ms Stephens had lied about what she maintained she had seen.  However what she had had seen was in accurate because the appellant was not asleep she was merely resting

32.	She vehemently denied any negligence or bad conduct in connection with the incidents of the fall by the resident or of her pushing a wheelchair and gave emotional evidence about her love and passion for her job and the residents at the home, she treated them as her own mother, and how she wanted to make a long term career in care. 

Submissions

Respondent’s written submissions

33.	The Appellant, Ms Obuobie, challenges the decision of the Respondent Secretary of State (“the Secretary of State”) to include her on the POVA and POCA lists. The Appellant was primarily listed on the POVA list, and her listing on the POVA and POCA lists (“the lists”) was confirmed on 14th September 2009.

34.	The reasons for the decision to include her in the lists are that she was dismissed from her employment as a care worker at the Stonebridge Nursing Home (“the home”) on 16th June 2008 because she was found to have been sleeping while on duty at the home and she was considered to be a person who is unsuitable to work with vulnerable adults and children.

35.	The Appellant’s case in her appeal appears essentially to be that she was wrongfully dismissed because she was not sleeping on duty.  If she was seen to have been sleeping, this was during a break from work, to which she was entitled.  Further, the Appellant states that she is a person who is committed to and passionate about her care work and is therefore suitable for this employment.

The Evidence

36.	In support of the Secretary of State’s case, the Tribunal has heard evidence from Ms. Nisha Cyriac, Ms. Claire Stephens and Mrs. Frances Edmunds.  In addition, the Tribunal has a witness statement from Ms. Julia Foley.

37.	It submitted that there is good evidence that the Appellant did sleep at her duty station on both the night shifts of Wednesday May 21st 2008 and Thursday May 22nd 2008.  In contrast to the allegations of sleeping which were the subject of the 2007 disciplinary investigation, the Appellant has never brought forward any mitigating circumstances in response to the 2008 allegations.  Rather, her defence has been a straight denial of the allegations.

38.		It must first be noted that no reliance has been placed on the 2007 allegations.  Inevitably, they provide background that a similar allegation had been made against the Appellant the year before.  But they are not relied on as such, just as they were properly not relied on by the home in June 2008 when deciding to dismiss the Appellant.

39.	It appears that the Home addressed the issue of sleeping on duty, including by the Appellant, by June 2007 at the latest.  Certainly, the Appellant could not have been in any doubt by May 2008 that sleeping on duty was unacceptable.  First, her employment handbook made clear that sleeping on duty was gross misconduct.  Secondly, she herself had been the subject of potential disciplinary action arising out of the matter in June 2007.  Thirdly, the Home’s evidence is that, not least given the historical nature of the problem, it had been repeatedly made clear to all care workers employed there that sleeping on duty would not be tolerated.

40.	The issue of breaks from duty is important in the appeal. It is submitted that the Home’s evidence is clear about the breaks policy.  First, the policy was that each night carer was entitled to a one hour break.  As regards to when this was taken depended on the number ascribed to the particular carer in the daily allocation record.  Changes to this arrangement had to be agreed with the nurse in charge.  Breaks should not be taken at the work station – that is, the corridor on the first floor of the home – but elsewhere, though it did happen that carers took their breaks at their station.

41.	The Appellant’s case is not that she was unclear about the breaks policy or when and where breaks should be taken.  Rather, it is that when she was seen by Mrs. Edmunds to have been sleeping on the night of 22nd May, that is, about 3 A.M., she was on her break.

42.	Although the Home’s misconduct finding turns principally on what Mrs. Edmunds herself saw, it is necessary for present purposes to note the evidence before the Tribunal from Ms. Stephens.  Ms. Stephens is a person of considerable experience as a nurse.  On 21st May, she was new to working at the home and did not know any of the persons who worked there.  She could have no “agenda” for or against the Appellant or anyone else at the home.

43.	On the night shift of 21st May, Ms. Stephens says that she first found the Appellant sleeping before midnight (Wit Statement, para 11).  She next saw her sleeping at about 1:30 A.M. (WS, para 14), though accepted in evidence that the Appellant was coming to the end of her allocated break (period 1) at that time.  Ms. Stephens says that she saw the Appellant sleeping again at about 2 A.M. (WS, para 15).  So, in total, the Appellant was seen by Ms. Stephens to be sleeping three times on this night shift.  Given the relevant times, the Appellant could only have been on her break on one of those occasions. 

44.	The next night, 22nd May, Ms. Stephens saw the Appellant possibly sleeping at about 1 A.M. (WS, para 19).  She was next seen sleeping between 2:30 A.M. and 3 A.M.; it was at the later time in this period that Mrs. Edmunds also saw her sleeping.

45.	Ms. Steven's evidence is clear that the Appellant’s break on this night shift was the same as the previous evening, that is, period 1 between 12:30-1:30 a.m.  However, it appears to have been changed to the next period, 1:30-2:30.  This aligns with what the Appellant also said about her break on this shift at the hearing on 16th June 2010; and with what she now says in her witness statement (at paragraph 13).

46.	Accordingly, even on the Appellant’s case, her break was between 1:30-2:30.  If the evidence of the home is to be accepted, she was therefore sleeping while on duty. It is submitted that the home’s evidence is to be preferred.  The allegation that the home and Ms. Stephens have contrived to make the allegation against the Appellant that they do, is simply unsustainable.  Indeed, the Appellant’s decision to make a key basis of her appeal an allegation of race discrimination against the home undermines her case in this respect.  In particular, she has never made a complaint of race discrimination against her dismissal or experiences over some 2 years employment at the home.

47.	The Secretary of State also relies on the complaints made by Ms. Stephens against the Appellant, arising from her treatment of a resident in the home.  The conduct observed by Ms. Stephens is plainly that of someone who is not suitable to be a care worker.  Ms. Stephens had no connection with the home, she made the allegation at the same time as the sleeping allegations and there is no reason at all to disbelieve her description of what she observed.

48.	 Finally, on unsuitability, the Appellant has consistently sought to avoid responsibility for the misconduct alleged. She has shown no insight into her conduct or remorse.   She has also changed the basis of her response at least once.  Further, in the course of the present appeal, she has sought to raise race discrimination complaints that she has never raised before, yet, if they had any merit, could have been raised elsewhere as a very strong complaint about the way the home had treated her.

49.	The Secretary of State submits that the Appellant’s appeal against her inclusion in the lists should be dismissed

The Appellant’s submissions

50.	There was no dispute between the parties on the law. 

51.	The submissions on behalf of the appellant were that we should place no reliance on the allegations of 2007.  We should find as a matter of fact that it was common practice for break times to be changed on a regular basis with out recourse to the person in charge.

52.	That the evidence showed that the appellant was a good worker.  This was confirmed not only by her own witnesses but also by the evidence of Nisha Cyriac.

53.	That we could not be certain that the appellant’s version of what happened was not correct namely that she was only resting and not asleep on the occasions on the 21st and 22nd of May when seen by Ms Stephens.

54.	She might have been asleep at 3.05 but if she was, she was on a break which had been changed by her as a result of working during her proper break time.

55.	 The main submission was that Ms Stephens was mistaken and the appellant was not asleep on all the occasions save for the last one when the appellant admits she was asleep but says this was during her break.

56.	As to suitability it was clear the appellant was passionate about her job and has been in the profession for a long time been.  The final instance of the 22nd of May is the misconduct relied so that one instance of sleeping could not be sufficient for her to be declared unsuitable.

57.	It was accepted that if we did decide that  her name should remain on the POVA list then she will also properly be named on the POCA list

The Law

The Applicable Law

58.	Section 81 of the Care Standards Act 2000 (“the 2000 Act”) enables the Secretary of State to keep a list of individuals who are considered unsuitable to work with vulnerable adults.  Section 80 of the 2000 Act explains what the term “vulnerable adult” means, and this definition includes, at subsection 6(a), “an adult to whom accommodation and nursing or personal care are provided in a care home”.
59.	Section 82 places a duty on a provider of care to the vulnerable adult to refer a care worker to the Secretary of State if certain conditions are fulfilled, including, at subsection 2(a) “that the provider has dismissed the worker on the grounds of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult”.  The Secretary of State may then invite observations on the reference from the provider of care and the care worker, and, based on the information before him, can confirm the care worker’s position on the Section 81 list.  The Secretary of State may only do so if he is of the opinion (as stated in Section 82(7)) “(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm a vulnerable adult; and (b) that the worker is unsuitable to work with vulnerable adults.”

60.	Section 86(1) provides a care worker who has been included on the Section 81 list with the opportunity to appeal to the First Tier Tribunal (“the Tribunal”) from a decision of the Secretary of State to include the care worker on the list.  At subsection (3), the Tribunal may direct that the care worker be removed from the list if it is not satisfied that the care worker 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 care worker is unsuitable to work with vulnerable adults.

61.	The Appellant has appealed her listing on the POVA and POCA lists and List 99. A person who is included on the PoVA can appeal to the Tribunal against the listing pursuant to Section 86 of the 2000 Act. Section 86(3) of the Act provides that:
“If on an appeal or determination under this Section the Tribunal is not satisfied of either of the following, namely –
 his duties) which harmed or placed at risk of harm vulnerable adults; and

(b) that the individual is unsuitable to work with vulnerable adults, 
the Tribunal shall allow the appeal or determine the issue in the individual’s favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct to the individual’s inclusion on the list.”

62.	In LU & DU v. Secretary of State for Health (2007) 1092.PVA, at paras 5 and 6, the Tribunal made clear that there is a three stage test in cases such as the present.  On this approach, the appeal can only succeed if the Appellant establishes that she was not responsible for misconduct, that there was not harm or a risk of harm arising from her conduct, and that she is not unsuitable to work with vulnerable adults.  It is for the Secretary of State to establish, on the balance of probabilities, that the Appellant was responsible for misconduct which caused harm or a risk of harm; it is for the Appellant to show, again on the balance of probabilities, that she is a suitable person to work with vulnerable persons.

Misconduct
63.	Falling asleep has been held by the Tribunal “in the majority of cases” to be misconduct (see Sini Joyce v SoS for Health [2006] 813.PVA, para 56).

Harm
64.	Falling asleep has been held by the Tribunal to place vulnerable adults at risk of distress and serious harm (LU and DH v SoS For Health [2007] 1092.PVA, at para 15).

Unsuitability
65.	.	In MM v Secretary of State for Health [2007] 1149.PC, at para 17, the Tribunal expressed its concern at the denial by two appellants of allegations and their failure to acknowledge any shortcomings. This should be compared to LU and DH (above) where the show of remorse by the Appellants was a factor in their successful appeal on the suitability issue.

66.	In Mairs v. Secretary of State for Health [2004] 269.PC, the Tribunal decided that any consideration of unsuitability involves consideration of the following matters, among others: the number of incidents; the gravity of misconduct; the time elapsed since that misconduct; the timing and degree of recognition by the Appellant of the conduct; extenuating circumstances around the misconduct.

67.	In considering the appellant’s suitability to work with children we considered the decision of Secretary of State for Children, Schools and Families V BP [2009] EWCH 866 (admin) and the maintenance of public confidence.

Tribunal’s conclusions with reasons
We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us during the hearing of this appeal.

Is the appellant guilty of misconduct?
68.	On the evidence we have read and heard we are satisfied that the appellant was asleep on duty on a number of occasions on both the 21st and 22nd of May, 2008.  Where it is necessary for us to do so we prefer the evidence of Ms Stephens and Mrs. Edmunds to the evidence of the appellant and her witness Ms Herlthy.

69.	We reach this conclusion because first there is no reason at all that we can see why Ms Stephens on the first night of her duty in a new home should have made up or been mistaken as to what she saw.  The first occasion she saw the appellant sleeping was before midnight and this clearly struck her as unusual because it occurred so early in the shift.  She is a very experienced nurse who told us she had worked very many nights herself and was well aware of the dangers of falling asleep. 

70.	We discount the appellant’s version because it was only in her oral evidence and not in her written evidence nor in any of the submissions to the ISA did she ever mention that the Chelsea and Manchester united match as being the reason why she could not have been sitting asleep before midnight when Ms Stephen said she saw her.

71.	Secondly Ms. Stephens tells us that she watched with Diane Sola on each occasion when she found the appellant asleep. Although we did not hear or read evidence from Diane Sola the fact that Ms Stephens tells us that she went and got her on each occasion to witness the appellant sleeping is good evidence that what Ms Stephen says she saw did in fact occur. We therefore find that on the 21st of May the appellant was asleep before midnight, again at 1.30 and then at 2.00 a.m.

72.	Our finding is further confirmed by the fact that Ms. Stephens the next morning reported these occurrences to the agency.  There is no evidence at all to suggest she was doing this to find favour with Mrs. Edmunds as suggested to her in cross examination or because she was influenced by Mrs. Sola.  We think it's highly material that she reported to her employer, the agency, and not directly to Mrs. Edmunds which surely she would have done it as the appellant suggests it was being done that to get favour with Mrs. Edmunds.  She was merely properly following procedure because she wanted to report what she considered was misconduct by the appellant and another agency carer during the previous night.

73.	Doing the best we can on the evidence we have heard it might be that at 1.30am the appellant was on her break.  This might excuse her sleeping although by deciding to sleep at her place of work rather than in the lounge she put herself at risk in that respect.  Even if she was on break at 1.30 clearly she was not on break before midnight or at 2.00 a.m.

74.	As to her break on the 22nd of May the appellant has changed her evidence regarding her rest period.  We prefer the evidence of Mrs. Edmunds and Ms. Stephens that the break period was properly between 1.30 and 2.30.  The appellant said when interviewed on that night and again at the disciplinary meeting that this was the time of her break.  The fact that her break was disturbed at around 2.00 am to change a bed we do not accept entitled her to have the right to unilaterally change her break time.  Neither did it entitle her to extend the one she had been given.  The fact she chose to have a rest period at the work station rather than in the lounge, she should have recognised made it difficult for management to know when she was on her break.  We find as a matter of fact that the appellant was asleep at 2.30 a.m. and again 3.05 am.  We have no doubt that both Mrs. Edmunds and Miss Stephen stood and watched her asleep for at least 2 minutes on the second of these occasions.  We also conclude that on neither occasion was she on her break.

75.	We find the appellant's evidence and that of Eugenie Herlthy that Mrs Herlthy was with her throughout the night and therefore at no time did the appellant fall asleep, as unsustainable.  We find instead that Mrs Herlthy was not at her post at 2.30 or at 3.05 when Ms Stephens and Mrs. Edmunds saw the appellant sleeping.   In our view that was because Mrs Herlthy was on her break.

76.	There is no doubt that the appellant was fully aware from the employee handbook and instructions from management that sleeping on duty was an act of gross misconduct.  She knew from what had happened in 2007 it was a matter which management took very seriously.  We have no difficulty in finding for all the above reasons that she was guilty of misconduct on the 21st and 22nd of May.
Did the misconduct harm or place at risk of harm a vulnerable adult?
77.	Given the client group in the home, all the evidence shows that staff need to be alert 24 hours a day and sleeping whilst on duty might enable residents to wander out of their rooms unsupervised and be at risk of serious harm.  As conceded by the appellant, we therefore find that this misconduct of the appellant did or could have put vulnerable adults at risk of harm.

Suitability
78.	This issue has caused us to reflect at some length.  On the one hand the appellant has been a carer, working primarily on nights over a considerable period of time.  She was seen as either satisfactory or good when appraised  or subject to supervision meetings and one who had the ability to progress through the career stages by passing NVQ so as  to have a long-term career in caring for those with dementia.  She has been clearly upset by what has happened and we doubt whether she would commit the same act of misconduct again. We felt she had genuinely regretted the incidents.

79.	On the other hand this was not one isolated act of misconduct but incidents which involved sleeping on duty on two consecutive nights and on more than one occasion each night.  We find this surprising given that she was well aware that Ms Stephens had found out her misconduct on the first night.  On one occasion we believed she slept and had failed to properly check a resident who was very wet in bed.

80.	Most importantly to our thinking however has been the appellant’s attitude.  Rather than accepting her misconduct the appellant has persistently sought to dispute the fact that she has ever slept on duty at all and has made completely unfounded and unsubstantiated allegations that her dismissal was unfair and based on grounds of race.  These allegations were exposed before us as being totally lacking in merit and without foundation.  Whilst there was evidence before us in the papers that Ms Diane Sola had subsequently been dismissed and became the subject of criminal proceedings relating to the care of residents, there was nothing which supported the view that she (D. Sola) was capable of persuading Ms Stephens and Mrs. Edmunds to dismiss the appellant.  

81.	Indeed all of the evidence suggested that that Mrs. Edmunds and the management at the home had been very supportive of the appellant and sought to help further her career.  We accept Mrs. Edward’s evidence that she was very disappointed to have found the appellant asleep on the 22nd.  During her evidence the appellant’s position appeared to move, and to say that Ms Stephens was not racially motivated but merely had been manipulated.  This and other areas in which the appellant has been inconsistent in her account  suggested to us  that the appellant was not been trustworthy about her acceptance of the errors we find she made and shows no recognition or acceptance of her misconduct.

82.	The appellant accepted that since being placed on the list for POVA she has continued to work as a carer although she maintains she thought she was entitled to do so because of this appeal.  The letters sent to her by the ISA were very clear about this and given that she was working through an agency we find her belief strange.  The position is more concerning given that for this appeal she was legally represented.  This disregard of the legislation gives us great concern as to her suitability to work with vulnerable adults or children in the future.  
Should she remain on the POVA list?
83.	As a result on balance we have concluded that the appellant has been guilty of misconduct which did place vulnerable adults at risk of harm and that the appellant is unsuitable to work with vulnerable adults. As a result we conclude her name should remain on the list. 
Should she remain on the POCA list?
84.	As conceded by the appellant’s representative it is right therefore for the sake of public confidence that she remain on the POCA a list as well. (Secretary of State for Children, Schools and Families V BP [2009] EWCH 866 (admin) applied)

Order

That the appeal be dismissed.

Judge Tony Askham