ADJOURNMENT

BUPA Care Homes (CFC Homes) Ltd v Muscolino

EAT: Elias J (President): 22 May 2006

The claimant, a care worker at a nursing home, was found asleep while on duty and dismissed for gross misconduct. In accordance with their obligation under section 82(1) of the Care Standards Act 2000, the employers referred the claimant to the Secretary of State who decided, pursuant to section 82(4), to include her name provisionally in the list of individuals prevented from working with vulnerable adults. An employment tribunal refused an application by the employers to adjourn a claim of unfair dismissal brought by the claimant, pending the Secretary of State's determination of whether or not the inclusion of her name in the list should be confirmed, on the ground that an adjournment was not in the interests of justice. The Secretary of State subsequently decided that the employers had reasonably considered the claimant to be guilty of misconduct that harmed or placed at risk of harm a vulnerable adult; decided that the claimant was unsuitable to work with vulnerable adults; and confirmed her inclusion on the list.

The employers appealed from the refusal to adjourn the claim of unfair dismissal, pending any appeal by the claimant to the Care Standards Tribunal.

ELIAS J (PRESIDENT) held:
Whereas, in determining the unfair dismissal claim, the employment tribunal focused on the employers' conduct, asking whether a reasonable employer carrying out a reasonable investigation could have reached the same conclusion, under section 86(3) of the Care Standards Act 2000 an investigation by the Care Standards Tribunal, on an appeal from the Secretary of State, focused on whether the misconduct actually occurred and the suitability of the care worker to work with vulnerable adults. Any decision or findings of fact made by the employment tribunal would not be binding on the Care Standards Tribunal, though they might be admissible in evidence, and, while there was a risk of some embarrassment if the employment tribunal were to express a view as to whether the claimant had committed the misconduct and the Care Standards Tribunal, though giving weight to that, came to a different view, that was not a likely outcome. Conversely, if the Care Standards Tribunal were to reach a conclusion first, a finding that the claimant had committed misconduct would not bind the employment tribunal and would not be decisive of the hearing before the employment tribunal. Although a subsequent decision by the Care Standards Tribunal that the claimant should not be allowed to work with vulnerable adults would impact on any question of remedy, that did not justify delaying the claimant's right to have her unfair dismissal claim heard, and a stay should not be granted .

Appeal dismissed.

Appearances: Jason Galbraith-Marten (Eversheds LLP, Leeds) for the appellant employers; the claimant did not appear and was not represented.