Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Health Care Provider

Representatives

Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014002-001

18/09/2017

The respondent provides residential, day and community outreach services to adults and children with a range of complex needs. Services range from high-support in a residential setting to supported independent living. The complainant was a relief care assistant in a high-support unit for five men and three women. The residents are vulnerable adults, some with very challenging behaviour which, in the absence of supervision and support, could lead them to harming themselves or others. The house is divided into a male and female section, with separate kitchen and living areas in each section. In their submission, the respondent said that to comply with the Health Services Executive (HSE) and Health Information and Quality Authority (HIQA) requirements, there must be a specified number of carers on duty at all times, including at night. Carers working at night must remain awake for the duration of the shift, referred to as a “waking night shift.”

The complainant commenced employment as a relief social care worker on December 14th 2015.   She worked around 30 hours per week and earned €13.38 per hour, with an additional €2.00 per hour for waking night shifts. She was dismissed on September 14th 2017, following an investigation into an incident in which the director of operations concluded that she was asleep on duty in the early morning of July 6th 2017.

On the night of July 5th/6th 2017, the complainant was one of four staff on duty in the male section of the house. Of the five residents, one required two staff members to care for him, including during the night. Another had one carer. Three of the residents were described by the team leader as “good sleepers.” The complainant was rostered to work from 9.00pm until 9.00am the following morning.   In her evidence at the hearing, the complainant said that she arrived for work at 9.00pm to be told that she wasn’t needed. When she was almost home, she got a phone call to ask her to come back, and she returned to the house, commencing her shift at around 10.30pm.

It is the complainant’s case that, when she was discovered by a manager at 5.00am on the morning in question, sitting in the dark with her feet up on a chair, she was not asleep.   She claims that her dismissal was unfair.

Background to the Complainant’s Dismissal

In her evidence at the hearing, the team leader said that she attended the house at 5.00am on the morning of July 6th. She went in to the female side of the house first and the four staff on duty were monitoring the residents and completing paperwork. One of the residents had just gone back to bed, having been up a few times during the night.

When she went to the male section of the house, the team leader said that she went to the kitchen / monitoring room where she met one carer monitoring his assigned resident.   The carer told the team leader that the night had been reasonably quiet and that the residents had slept well.   The team leader said that she went towards the sitting room where a couch was holding the door open. She said that the room was in darkness with the curtains closed. The complainant was asleep on two chairs that had been pulled together, partly covered in a throw. Another member of staff was asleep on a couch. The team leader said that she stood in the doorway for about two minutes before going into the sitting room and turning on the light. The complainant woke up, but her colleague had to be woken. The team leader said that she spoke to complainant and her colleague and said that she would meet them in a few minutes in the monitoring room. When she met them, she advised them that it was unacceptable to be asleep on duty as they were there to ensure the safety of the residents. She said that she would report what happened to the regional manager. The complainant said that she wasn’t asleep.   Later that day, the team leader submitted a written account of what she observed to the regional manager and a copy of this document was submitted in evidence.

The complainant was asked to respond to the team leader’s report and she sent a detailed response by e mail on the evening of Thursday, July 6th. A copy was submitted in the respondent’s booklet.   The complainant said that she was not asleep when the team leader was doing her rounds that morning, and that she had simply sat down for a few minutes and that she had put her scarf over her legs as the sitting room was cold.

Disciplinary Process

On July 12th 2017, the complainant was invited to a disciplinary meeting the following day.   Although she was advised to be accompanied by a trade union representative or a colleague, the complainant attended the meeting on her own. The director of operations chaired the meeting and she gave evidence at the hearing. The notes of this meeting were also submitted in evidence.

At the disciplinary meeting, the complainant was asked why the lights in the sitting room had been turned off and she said that they were turned off when she and her colleague went in to the room. She was asked why she was sitting in the dark and she said that she thought that it would be less disruptive to the service-users. She was asked why, if she was awake, she did not get up or say hello to the team leader when she stood in the doorway of the room. In response, the complainant said that she didn’t know the team leader and she thought the person in the doorway was a member of staff. She said that never before, during a waking night shift, had she sat in the dark and she also said that she was aware that the team leaders carried out spot checks as she had been working in another house when a spot check was carried out.

The meeting with the complainant was followed up with meetings with the team leader and the colleague who was in the sitting room on the morning of July 6th.   At a meeting on September 14th, the complainant was advised that, in accordance with stage five of the respondent’s disciplinary procedure she was being dismissed. A letter of dismissal was issued on the same day. The letter stated,

“…your action of sleeping while on waking night duty is completely unacceptable and is considered gross misconduct by the Company.”  

The complainant appealed against her dismissal, but following an appeal hearing with another director of operations, her dismissal was upheld.

Case Law and the Application of Law to the Facts of the Case

The respondent’s case is that it was reasonable to dismiss the complainant, as there were substantial grounds for dismissing her. In consideration of the “reasonableness test,” Ms Fay referred to the the statement of Lord Denning in the case of British Leyland UK v Swift, [1981], IRLR 91, adopted and cited with approval by Mr Justice Linnane in the case of AIB v Purcell [2012] 23 ELR 189 and by Mr Justice Noonan in the High Court case of Bank of Ireland v Reilly [2015] 26 ELR 229:

“…the correct test is, was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.   But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all cases, there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take another view.”

It is a HSE and HIQA requirement that the residential centre in question is appropriately staffed at all times. This includes the night time, where waking shifts rather than sleeping night shifts are necessary. One of the male service-users is considered so high a risk that he has two staff members assigned to him, even during the night. On the night in question, of the four staff on duty, two were found together in a dark sitting room with their feet up and covered with a rug or scarf. The complainant maintained that she was awake but offered no explanation about why she was sitting in the dark and why she did not respond when the team leader entered the house and stood in the doorway. She could not say if her colleague was asleep. This person subsequently admitted that she drifted off to sleep when she sat down for a few minutes. She was also dismissed.

Ms Fay said that the importance of proper supervision of service-users was made clear to all staff, including the complainant. Sleeping on duty or leaving a service-user unsupervised is expressly categorised in the disciplinary procedure as gross misconduct. Staff who are not supervising, or not in a position to do so because they have fallen asleep, are putting themselves, their co-workers and extremely vulnerable service-users at risk.

For the respondent, Ms Fay submitted that there was sufficient evidence for the employer to reasonably form the conclusion, on the balance of probabilities, that the complainant had fallen asleep. The complainant confirmed that she was aware of the requirement to stay awake and that spot checks are carried out. She acknowledged receiving the employee handbook which expressly states that sleeping on duty is gross misconduct. The complainant had been trusted to care for vulnerable service-users during the night and was paid a premium for doing so.   It is the respondent’s case that she fundamentally breached the employer’s trust by putting herself in a position, whether by accident or design, that left her asleep on her shift and under-responsive to issues that could have arisen. This is reflected in her failure to react to her team leader entering the house and then the sitting room and her lack of awareness of the fact that her colleague had fallen asleep. The respondent’s position is that, when she decided to sit in a dark room at around 5.00am with her feet up and covered by a scarf, the complainant was fully aware of her obligation to stay awake. Her conduct therefore was highly questionable and, it is the respondent’s case that the decision to dismiss her was fair and reasonable in these circumstances.

In her written response on July 6th 2017, the complainant said that she came on duty at 10.30pm, as she was already almost home when she got a call to return to the house to do the night shift. She had not worked a night duty in this particular house before and she got instructions from the care worker who was in the monitoring room when she arrived.   She said that it was after 2.00am when all the residents were in bed and the house was quiet. She then started cleaning and doing the laundry.   She collected the milk from the front door and took food from the freezer to defrost for the following day.   Around 4.00am, the complainant said that she and her colleague went to the kitchen for a cup of tea and they decided to go to the sitting room, where they sat talking for a while.   She said that she covered her legs with her scarf because the room was a bit cold.

When the team leader arrived to do the inspection, the complainant said that she saw her standing at the door of the sitting room, but, as she did not know her, she thought she was another member of staff. When the team leader switched on the light, she said her eyes were open and she had stretched her legs out on another chair. In response to the team leader telling her that she shouldn’t be sleeping on duty, the complainant said that she wasn’t asleep.   She and her colleague then proceeded with mopping the floors and finishing the cleaning.

The complainant said she was surprised to find that it was reported that she was asleep at work, when she said she is “not somebody who would be sleeping on duty.” She said that she knows that spot checks are carried out, because she was working in another house when a team leader arrived to check that everyone was working.

In her evidence at the hearing, the complainant said that the team leader’s description of the two chairs being pushed together is not correct. She said that she stretched her legs across the space between two chairs.   She said that she saw the team leader coming in to the room and that, apart from repeating that she was not asleep, she couldn’t say much more in her defence. She said that a decision about her dismissal was made because she was sitting in the dark.

Describing the effect the dismissal had on her, the complainant said that “what happened cost me a lot” and she has been “torn apart.” She said that she “would not say a bad thing” about her former employer, but she got a bad reference.   She said that she was up front and honest and she was a committed employee.

Following her dismissal, in October 2017, the complainant said that she returned to college to take a higher diploma in social care work. She intended to return to work in August 2018.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(b) of the 1977 Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The conduct that led to the complainant’s dismissal is a finding by her employer that she was asleep when she was rostered for duty in the early morning of Thursday, July 6th 2017.

My role here is not to take the place of the employer, but to consider if, by established standards of reasonableness, the decision to dismiss the complainant was fair and the process that resulted in her dismissal was a fair process. Having listened to the evidence of both sides at the hearing, I think it was reasonable for the respondent to conclude that the complainant was asleep when she was discovered by the team leader in the sitting room at 5.00am. It seems to me that any normal person, having been on duty since 10.30pm, who goes into a dark room and puts her feet up and covers herself with a scarf would fall asleep. This, combined with the fact that the complainant did not respond when the team leader stood at the sitting room door, indicates that, on the balance of probabilities, she was asleep.

Wasthe Decision to Dismiss Reasonable?

For employees of the respondent, the “waking night shift” as it is described, attracts a premium of 15%. This reflects the unsocial aspect of the job and the inconvenience associated with working at night. The importance of the need to be awake on duty at night is reflected also in the respondent’s practice of carrying out spot checks on staff during the night and early morning. From this, it is clear that there was no tolerance of sleeping on duty, a practice that might be overlooked in some settings.  

The residents in this care setting were described as “vulnerable” with challenging behaviours.   There was a high staff to resident ratio, reflecting the risk of aggression and self-harm. It is apparent to me that the requirement to remain awake on duty is specific to the needs of these residents.   From the statement of the complainant who said, “… around 2.00am all the service users retired to their respective rooms for the night,” it is evident that supervision was necessary during the night. She also reported that during her shift, a resident rang for a drink and he was served by two carers. The team leader who visited the house at 5.00am was informed that one of the female residents had just gone to bed, having been up a few times during the night. The requirement to be on active duty during the night is not simply a compliance issue, it is a necessity to ensure the safety and care of the residents.

There can be no doubt that it must be difficult at times to stay awake in a house where people are sleeping, and the shift from 9.00pm until 9.00am is long. However, it must be possible for staff to cover for each other during breaks so that they can take a short nap at some stage during the night.

In the respondent’s disciplinary procedure, one of the examples of gross misconduct is,

“Neglect of a Service User, inclusive of failure to follow the Service User’s plan, leaving a Service User unsupervised, falling asleep whilst on shift.”

The term “gross misconduct” normally refers to a deliberate action or behaviour on the part of an employee. It implies that something was “done” and it is not generally associated with a passive state such as sleeping. Although the cause of dismissal is entirely different, the issue of passivity is at the heart of a case referred to in paragraph 16.05 of “Redmond on Dismissal Law” by Desmond Ryan, (Bloomsbury Professional Limited 2017), Adesokan v Sainsbury’s Supermarkets Ltd [2017] ICR 590. In this case, at the English Court of Appeal, , Mr Adesokan appealed against his dismissal by Sainsbury’s Supermarkets. He had instructed a HR Manager not to send an e mail message to a group of store managers, and he was dismissed when he failed to do anything when he discovered that his instruction was not followed. The trial judge considered that gross negligence is on a par with gross misconduct:  

“The focus is on the damage to the relationship between the parties. Dishonesty and other deliberate actions which poison the relationship will obviously fall into the gross misconduct category, but so in an appropriate case can an act of gross negligence.”

In the case under consideration here, the complainant’s sleeping meant that she was not supervising the residents, with the result that they and the other staff were at risk of harm. Being asleep on duty in the care setting where the complainant worked might be more appropriately described as “gross negligence” rather than “gross misconduct.”

Leaving the terminology aside, the complainant was aware that sleeping on duty was not permitted, as, apart from its inclusion in the disciplinary procedure as an incident of gross misconduct, she had experience of a spot check being carried out when she worked a night shift in another house. By failing to remain awake and active, she put the welfare of the residents at risk.   As she and her colleague were asleep, two carers were left awake and responsible for five residents. These two employees were also exposed to a risk of harm. If an incident had occurred, an investigation would have been initiated by HIQA, resulting in additional costs and reputational damage to the respondent’s business. Having given serious consideration to this matter, it is my view that another employer faced with the same set of circumstances, would have dismissed this employee.

By sleeping on duty, the complainant failed to observe the basic requirement of night shift employees, which is to remain awake and active. I find that the dismissal of the complainant in these circumstances was not unfair.

Was the Process Fair?

During the hearing of this complaint, I observed that the process that resulted in the complainant’s dismissal was in accordance with the respondent’s disciplinary procedure and with fair procedures generally. The complainant was informed of the seriousness of the conduct under investigation and she was asked for a response. At the disciplinary meeting that followed, she was advised to be represented, although she declined this option. She received copies of notes of all the meetings and she was given an opportunity to respond. She appealed against her dismissal to an un-involved manager, but the decision to terminate her employment was not overturned. The complainant raised no issue with the steps that led to her dismissal and I find that the process was fair.

Conclusion

I accept that, for this complainant, this is a harsh decision as, at the hearing, I found her to be honest and direct, and bearing no ill will towards the respondent. I note that, after she was dismissed, she undertook a higher diploma course in social care and I am confident that she will make a positive contribution in her next job.

While I have no authority to make this request, it would be helpful, in my view, if the issue of sleeping on duty could be more clearly referred to in the respondent’s disciplinary procedure. At present, it is included as the last item in a list as follows:

“Neglect of a Service User, inclusive of failure to follow the Service User’s plan, leaving a Service User unsupervised, falling asleep whilst on shift.”

As it is a singularly serious failure, it would be helpful for employees if it was assigned a line to itself, or, if it was categorised as “gross negligence” attracting the sanction of dismissal.

Having considered all the evidence, verbal and written, and having taken account of the legal framework regarding the dismissal of an employee due to misconduct, I have decided that from a substantive and a procedural perspective, the decision to dismiss was not unfair and I find against the complainant.