Having an investigation into poor handling of a service user was not a repudiatory breach of contract when there was evidence given to the respondent showing such behaviour.

The claimant was employed as a permanent home care worker in 2004. The claimant resigned from this post in February 2021.  The claimant was also a home care worker bank worker from April 2016 until April 2024 when she was removed from the bank worker list following a cleanse during a digitalisation of the system.

An issue arose in September 2017 relating to one service user.  The service user required a high level of personal care and feeding. Due to the injury, the service user had a history of sexualised behaviour. The service user’s family placed a hidden camera in his bedroom.  The service user’s wife made a complaint with the footage showing poor manual handling and that the claimant and her co-worker had struck the service user.  This was investigated and a recommendation of a disciplinary hearing was made. 

The claimant did not attend the disciplinary hearing and no reason was given for the non-attendance.  The claimant was found guilty of misconduct and given a final written warning for a two-year period. The claimant appealed the decision.  The appeal was rearranged for 3rd April 2020 but due to the pandemic all employee relations activity had been stood down. The appeal hearing was then rearranged for 30th June 2020.  It was due to start at 9.30 but was delayed until 10am due to discussions between the claimant, her husband and the trade union representative.  At 10am only the Trade Union representative entered the room with the claimant leaving the building. The appeal panel decided upon the final written warning which would remain for two years. They also recommended an additional period of monitoring and training. 

There were some other complaints made and the claimant stated that she had been suspended in January 2019.  This was not the case and no record of this was ever made.  The claimant had then submitted a sick line which the Tribunal took as evidence demonstrating that there was no such suspension.  The claimant was absent from January 2019 until she submitted a resignation in June 2020. HR advised that before accepting/processing that there should be a meeting to explore reasons for the resignation.  The review meeting was scheduled for 30th September 2020.  The claimant did not attend and another meeting was scheduled for 9th November 2020 via Zoom.  The claimant, again, did not attend. The panel met in January 2021 and decided that they could not make a decision relating to the absence management procedure without another OH report. The claimant submitted a letter of resignation in February 2021 and in March the claimant was given an opportunity to reconsider.  The claimant confirmed the intention to resign and this was processed in March 2021 with it being effective from February 2021.

The claimant made a series of claims. The first was that of constructive dismissal with the claimant arguing that the investigation/disciplinary process and the alleged suspension were breaches of contract. The Tribunal disagreed finding that it was reasonable for the respondent to carry out an investigation following the video evidence and that the claimant was not suspended and the claimant was told that on multiple occasions. As a result, there was no repudiatory breach.

The claimant argued disability discrimination but the Tribunal found that the arguments of stress, anxiety and PTSD did not amount to a disability within the meaning of the 1995 Act.  It was not shown through evidence that it had a substantial and adverse effect on her day-to-day life. 

A claim was made relating to religious discrimination on the basis that in one of the claimant’s annual appraisals it stated ‘also feeds fish to RCs on Friday’.  The maker of the statement said it was designed to be demonstrable of the claimant’s ability to show equality and diversity as she cared for a Roman Catholic who watched mass every day and ate fish every Friday during Lent.  The positive manner was accepted by the Tribunal and therefore no detriment was ever shown.

A fairly protracted case relating to the investigation and disciplinary matters as well as the processing of the resignations. That being said, the Tribunal found that there was no repudiatory breach of the contract and that it was reasonable to conduct the investigation and disciplinary matter considering the evidence given. The respondent also kept good records in relation to the alleged suspension and was very clearly able to show that the suspension did not take place.  This collation of evidence was important for the respondent in being able to refute the claims made.

NI Tribunal decisions are available on the OITFET website.