In Difolco v Care UK Community Partnerships Ltd : 4102749/2023,Trinity barrister Sarah Ismail defended Care UK at a five-day hearing at the Edinburgh Employment Tribunal.
The Claimant brought claims of failure to make reasonable adjustments, sexual harassment and unfair dismissal. She had been employed as a care assistant in the Cairdean Nursing Home since 2 October 2019, providing personal care to vulnerable residents. On 18 October 2022, the Claimant was arrested and charged with murder following a police investigation. The matter was reported in the Daily Record newspaper, where the Claimant was named in relation to the murder charge, along with two other people.
The Claimant was ultimately dismissed due to potential risk of reputational damage. Specifically, the Respondent averred that the staff, residents and their family members might read the newspaper and learn that the Claimant had been accused of murder.
The Tribunal found that the dismissal was of a kind as to justify the dismissal of an employee holding the position which the Claimant held and was accordingly potentially fair. However, the Tribunal found that risk of reputational damage was not discussed with the Claimant at the disciplinary or appeal hearing.
Nonetheless, having regard to the evidence led at the hearing, the Tribunal agreed with Ms Ismail that, had the risk of reputational damage and the alternatives to dismissal been discussed with the Claimant, she would have been dismissed in any event. That dismissal would have been fair, given the nature of the reputational risk (working with vulnerable residents whilst on trial for murder). The Tribunal therefore reduced the compensatory element to nil.
The Tribunal also found that the allegations of sexual harassment were out of time and that it was not just and equitable to grant an extension of time. The Tribunal agreed that the Respondent did not know, and could not be reasonably expected to know, that the Claimant suffered a disability, for the purposes of her claim of failure to make reasonable adjustments. The discrimination claims were therefore dismissed.
Sarah Ismail is an employment and discrimination barrister at Trinity Chambers and was instructed by Jonathan Shuster of DAC Beachcroft LLP.
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