Care Home Worker Charged with Murder Wins Unfair Dismissal Claim
In Jacqueline Difolco v Care UK Community Partnerships Ltd, a care home worker charged with murder was ruled to have been unfairly dismissed. This came after the tribunal found failures in the respondent’s disciplinary procedure. Despite this, they reduced the compensatory award to nil, believing that the worker would have been dismissed if a proper procedure had taken place. Read on as we outline the events and the employment tribunal’s judgment.
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The Facts in Jacqueline Difolco v Care UK Community Partnerships Ltd
Care Home Worker Charged with Murder
Jacqueline Difolco (“The Claimant”) began working for Care UK Community Partnerships Ltd (“The Respondent”) on 2 October 2019. She was employed as a care assistant, providing personal care to vulnerable residents of Cairdean Nursing Home.
On 18 October 2022, the care home worker was arrested and charged with murder. Whilst she remained in police custody for 30 hours, her daughter reported that her work absence resulted from Covid.
The following day, the claimant attended court before subsequently being bailed. The case was reported in the Daily Record newspaper, and while the claimant’s name, age and hometown were mentioned, her employer was omitted.
Respondent Dismisses Claimant
On 20 October, the claimant’s daughter informed the respondent’s home manager that her mother had been arrested and charged with murder. Consequently, the care home worker was suspended on full pay pending an investigation. The respondent reasoned this was so they could evaluate “a breakdown in trust in confidence and potentially bringing the company into disrepute…”.
Seven days later, a fact-finding meeting took place, where the claimant had to explain her situation. She confessed that she hadn’t been absent with Covid but had been in police custody for 30 hours. Despite this, she protested her innocence and explained that she had to wait for this nightmare to end.
Then, on 31 October, an investigator assigned to the case by the respondent produced their report. They detailed that since the claimant had been deceitful in her work absence and arrest, there had been a breakdown in trust.
This led to the claimant’s invitation to a disciplinary hearing, which took place on 14 November. The care home worker attended the meeting with her union representative and reiterated her previous statements.
However, the respondent explained that there had been a breakdown of trust and was potential for reputational damage to the company. As a result, the claimant was dismissed with a payment in lieu of notice.
Employment Tribunal Claims Initiated by Care Home Worker
After the claimant’s sacking, she visited her GP on 18 November. She had been suffering from anxiety, which had resulted from her employment termination and the ongoing criminal charges. She also appealed the respondent’s decision, but this was upheld in a meeting on 8 December. Again, reputational damage was cited as the reason for their decision.
In the following years, the claimant battled with her mental health and was prescribed medication to help her deal with this. She commenced ACAS early conciliation at the beginning of 2023 and initiated employment tribunal proceedings on 14 April 2023.
The care home worker brought claims of unfair dismissal, failure to make reasonable adjustments and harassment. Almost a year later, on 21 March 2024, she was acquitted of her criminal charges but remained unfit to work.
The Employment Tribunal’s Judgment
The claims of harassment and failure to make reasonable adjustments were dismissed. The harassment claim related to an incident where a colleague of the care home worker had allegedly felt her breasts. However, because this incident fell outside the required timeframe, the tribunal didn’t have the jurisdiction to rule upon it.
As for the claim for failure to make reasonable adjustments, this concerned the claimant’s osteoarthritis. The tribunal recognised that she’d had this disability since at least 2020. Yet, because the claimant never informed the respondent about it nor how it impacted her work, they found no failure on the respondent’s part to make reasonable adjustments.
But there was still the unfair dismissal claim. The tribunal concluded that the claimant’s dismissal was potentially fair due to the substantial reason related to reputational damage. However, because the risk of reputational damage and alternatives to dismissal were never discussed, the disciplinary procedure was deemed unfair. As a result, the unfair dismissal claim succeeded.
Subsequently, the claimant was initially entitled to a basic award of £1,862.97. Nevertheless, the tribunal considered that if a proper discussion had occurred, the claimant would have been dismissed due to the significant reputational risk and cost implications of indefinite suspension. As such, they “concluded that it would be just and equitable to reduce the compensatory element to nil”.
If you believe you have been unfairly dismissed or have any questions, contact Redmans Solicitors without delay. As specialists in employment law, we can assess your situation and provide expert advice.
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