ET Says Care Assistant Who Wasn’t Told The Reason for Dismissal was Unfairly Dismissed

In the case of Ms Dyna Del Campo v Really Flexible Care Ltd, a judge ruled in favour of a care assistant regarding her unfair dismissal and wrongful dismissal claims on 26 September 2023. As such, a remedy hearing took place on 16 October 2023.

An unfair dismissal occurs when an employee is unlawfully sacked by their employer. Should this happen, the employee could claim compensation from an employment tribunal.

The Facts in Ms Dyna Del Campo v Really Flexible Care Ltd

Background – Ms Campo’s Suspension

Ms Campo (“The Claimant”) began working as a care assistant for Really Flexible Care Ltd (“The Respondent”) on 16 January 2017. Officially, she was a support worker before being promoted to senior support worker on 11 December 2017. Then, on 7 July 2019, she became the deputy manager.

On 19 March 2020, Miss Jodi Smith, the multi-site registered manager, received a call from the Bedford Borough Council. Their Safeguarding Team explained how they’d received a complaint about the claimant. It was claimed Ms Campo verbally abused residents, bullied staff, falsified records and made medication errors. This complaint came from a care home resident’s mother, who’d received an anonymous call from one of the claimant’s colleagues.

Following this information, Miss Smith suspended Ms Campo the same day on full pay. Miss Smith claimed she set out the specific allegations concerning Ms Campo’s conduct before suspending her. However, the claimant rejected this, saying that she’d only been told her suspension regarded an anonymous complaint about a safeguarding issue.

Ms Campo’s line manager, Mr Samuel Kamsonga, agreed with her, explaining how Miss Smith didn’t provide details of the complaint. Conversely, the respondent stated that a suspension letter had been sent to the claimant, providing its specifics. However, they couldn’t provide evidence of this letter’s creation nor that it was sent to Ms Campo.

Bedford Borough Council’s Investigation

Bedford Borough Council began an investigation of the complaint once it was received on 17 March 2020. Although Miss Smith assisted in the investigation, she confirmed no personal involvement in it or the decision-making process. Current and former employees, Ms Campo, and Mr Kamsonga were interviewed as part of it.

Following the council’s investigation, they created a report. This was compiled on 5 May, quality checked on 12 May and issued on 19 May 2020. The report aimed to establish if a care home resident was subject to psychological and emotional abuse. 

The report stated that Ms Campo accepted she was a loud individual but denied the alleged misconduct. Mr Kamsonga also said that Ms Campo was loud but didn’t shout. Furthermore, some of her colleagues said the care assistant turned deputy manager was friendly to staff and residents. However, others said she did shout at residents and didn’t like working with her for fear of losing their jobs.

In conclusion, the report unanimously upheld the allegation of psychological and emotional abuse towards a care home resident. Moreover, despite Miss Smith confirming no personal involvement in the investigation, the report included her opinions. It outlined that Miss Smith said Ms Campo could be disciplined under gross misconduct following an internal investigation.

Was There an Internal Investigation?

On 8 May 2020, Ms Campo received a letter containing her summary dismissal and right to appeal. This letter was provided by Mr Gohel, the respondent’s HR manager. He told the employment tribunal that no internal investigation occurred as he believed the council was thorough and reliable. This was despite an internal investigation being part of the respondent’s disciplinary procedure.

Mr Gohel explained that he decided to dismiss the claimant after reading the report provided by the council. However, the tribunal learned this couldn’t have been the case due to date discrepancies. Mr Gohel only gained access to the report after the claimant’s dismissal, meaning he relied solely on Miss Smith’s recommendations.

Appeal Made by Former Care Assistant 

On 13 May, the former care assistant appealed her dismissal. She reasoned that she’d been unfairly and wrongfully dismissed, the correct procedure wasn’t followed, the allegations were false, and the punishment was excessive.

Mr Gohel replied on 18 May 2020, explaining the appeal was unsuccessful. He said no further actions could be taken as they followed Central Bedfordshire Council’s recommendations. Furthermore, he explained that she’d been placed on the disclosures baring list, preventing her from working in care. However, on 22 May 2020, Miss Smith discovered that the claimant hadn’t been placed on this list.

As a result of her unsuccessful appeal, Ms Campo replied to Mr Gohel on 6 July 2020. She explained that she’d made a tribunal application about her dismissal. Also, she said the statement about her being placed on the disclosure barring list was untrue and defamatory.

The Decision of the Employment Tribunal

Firstly, on the facts presented, the tribunal said that conduct was the principal reason for dismissal, which is potentially a fair reason. Furthermore, they held that Mr Gohel genuinely believed in the claimant’s misconduct following the council’s investigation.

However, they ruled that the respondent failed to adhere to their disciplinary procedures, the ACAS Code of Practice, and the rules of natural justice. By undertaking no internal investigation or appeal hearing, they denied the claimant the opportunity to understand the allegations against her and challenge them. This was especially important for a reasonable employer to recognise, considering the potential career-ending impacts of this dismissal.

As such, the tribunal stated that an unfair dismissal had taken place. They added that had a fair procedure been followed; they weren’t convinced the former care assistant would have been dismissed fairly anyway. Also, they didn’t believe the respondent had proved the claimant had committed the alleged misconduct. This meant no deductions to Ms Campo’s potential compensation would be made.

Regarding Ms Campo’s claim of wrongful dismissal, the tribunal found that the respondent couldn’t prove she breached her employment contract. Therefore, they said this claim was also successful.

To conclude, the tribunal said that Ms Campo had been unfairly and wrongfully dismissed, meaning both claims were well founded and succeeded.

Contact us today if you have faced similar circumstances to this claimant. We are experienced in all areas of employment law and can assist you through the legal process.