England and Wales High Court (Queen's Bench Division) Decisions

(1)(i) The Progress of the Action

(1)                Background to job description.

(2)                What is done?

(a)                Main tasks performed; how/what with; frequency and for how long.

(b)                Occasional tasks performed; how/what with; frequency and for how long.

(3)                Knowledge & skills.

(4)                Judgement.

(5)                (a) Teamwork & Leadership.

(b) Supervision Received.

(6)                Accountability & Responsibility.

(7)                Relationships/Contacts.

(8)                Physical Demands & Co-ordination.

(9)                Conditions & Emotional Demands.

(10)            Any other Significant Aspects of job not previously covered.

(1)(ii) The Care Homes

(1)                Rowan Court , Silverdale Road, Newcastle-under-Lyme, Staffordshire ST5 2TA.  Rowan Court has capacity for 76 residents in three units: residential, nursing (for residents whose medical conditions require that a qualified nurse is on duty at all times) and memory (for residents with dementia).  Following an inspection on 25 October 2016 by the Care Quality Commission (“the CQC”), Rowan Court was rated as “Inadequate” and placed in special measures (which meant, inter alia, that no new residents could be admitted) until June 2017, when it was rated “Requires Improvement”.

(2)                Birchwood Grange , 177 Preston Hill, Harrow HA3 9UY.  Birchwood Grange has capacity for 150 residents.  It has five nursing units, two residential units and one dementia unit.  Given its location, Birchwood Grange has a large number of Gujarati residents: one residential unit and one nursing unit are dedicated Gujarati units.

(3)                Amarna House , Rosetta Way, York YO26 5RN.

(4)                St Georges Park , School Street, St Georges, Telford TF2 9LL.

(5)                Bowood Court and Bowood Mews , Hewell Road, Redditch, B97 6AT.  Bowood Mews has capacity for 34 residents. 

(1)                On 19 June 2015 the Third Defendant, now known as Rotherwood Healthcare (St Georges Park) Limited), acquired St. Georges Park.  The Third Defendant is a subsidiary of the Rotherwood group of companies.

(2)                On 4 December 2015 the Fourth Defendant, now known as Bowood Care Homes Limited, acquired Bowood Mews and Bowood Court.  On 19 January 2016 the Fourth Defendant became a subsidiary of Adept Care Homes Limited (“Adept”).

(1)(iii) The Material Dates

(1)                The Material Date for a Lead Claimant and a Comparator may be different. 

(2)                The Material Date for a Lead Claimant or Comparator may post-date the transfer of their (or a Comparator’s or Lead Claimant’s) employment to the Third or Fourth Defendant.

(1)(iv) The Lead Claimants and the Comparators

(1)                Debra Turner , a care assistant at Rowan Court (26 February 2018).

(2)                Linda Shore , a senior care assistant at Rowan Court (21 October 2017).

(3)                Ann Hughes , a unit manager at Rowan Court (22 March 2017).

(4)                Clara Hemmings , a head chef at Rowan Court (29 March 2016).

(5)                Stephanie Garwood , a care team leader at Bowood Mews (25 July 2016).

(1)                Tomy Thomas , employed at Birchwood Grange (25 May 2015).

(2)                Anil Chakkummoottil , employed at Birchwood Grange (26 February 2018).

(3)                Christopher Martin , employed at St Georges Park (26 May 2017).

(4)                Robert Brooks , employed at Bowood Mews (28 January 2017).

(1)                Mr Thomas and Mr Chakkummoottil were employed by Avery.

(2)                Mr Martin was employed by the Third Defendant from 19 June 2015.

(3)                Mr Brooks was employed by the Fourth Defendant following its acquisition of Bowood Court on 4 December 2015.

(1)(v) Witnesses

(1)                Mrs Shore.

(2)                Mrs Hughes.

(3)                Mrs Garwood.

(4)                Mr Brooks.

(5)                Wendy Thompson , a care assistant at Amarna House.

(1)                Jacinta Mary Greatrex , who has been the Home Manager at Rowan Court since 3 January 2017.  Mrs Greatrex’s evidence dealt with the work of the Lead Claimants from Rowan Court (i.e. Mrs Turner, Mrs Shore, Mrs Hughes and Mrs Hemmings).

(2)                Simon James Lawrence , who was Avery’s Group Hotel and Catering Manager from October 2014 to December 2015 and who has since then been Avery’s Group Culinary Manager.  Mr Lawrence’s evidence dealt with the work of Mrs Hemmings.

(3)                Mark Antony Bird , who has been the general manager of Birchwood Grange since 20 October 2014.  Mr Bird’s evidence dealt with the work of Mr Thomas and Mr Chakkummoottil.

(4)                Emma Sara Philpott , who has been Adept’s operations director since 2009.  Mrs Philpott’s evidence dealt with the work of Mrs Garwood and Mr Brooks.

(2)    General Issues

(2)(i) The Equality Act 2010

(1)  Sections 66 to 70 apply where—

(a)  a person (A) is employed on work that is equal to the work that a comparator of the opposite sex (B) does;

(b)  a person (A) holding a personal or public office does work that is equal to the work that a comparator of the opposite sex (B) does.

(2)  The references in subsection (1) to the work that B does are not restricted to work done contemporaneously with the work done by A.

“For the purposes of this Chapter, A's work is equal to that of B if it is—

(c)  of equal value to B's work.”

“A's work is of equal value to B's work if it is—

(a)        neither like B's work nor rated as equivalent to B's work, but

(b)        nevertheless equal to B's work in terms of the demands made on A by reference to factors such as effort, skill and decision-making.”

(2)(ii) Potter

“13.  We have thus far been considering the correct approach at the level of theory. Our conclusion does not of course mean that a tribunal has in practice to hear detailed evidence relating to every part of the claim period. In many cases — very likely the great majority — there will be no reason to suppose that the relevant facts are materially different at any point during the period. In such cases the facts will simply be stated as required by rule 5 (and, where necessary, found by the tribunal under rule 7) — and put to the independent expert where one is instructed — on a basis which does not differentiate between the different parts of the period.

14.  In some cases, however, either party or both may claim that the facts are materially different in different parts of the claim period. In such cases the facts will have to be stated (and, where necessary, found by the Tribunal) on a distinct basis in respect of the different parts of the period. How the task of stating the facts in such a case should be approached will depend on the circumstances. If the claimed differences are very great, the sensible course may be to have two completely distinct statements. In other cases it will be more convenient for the parties to produce a statement of the facts at a given “base” date but to identify the respects in which they are said to have been different in another part of the period. Usually it will be easier to take as the base date the most recent relevant date — typically, the date at which the claim is presented — because recent facts are most readily accessible, and to identify the variations by looking back. But there is no reason why it could not be done the other way round, taking as a base the facts at the beginning of the claim period and identifying any changes which occurred subsequently. These are simply matters of presentation, which do not affect the task of the tribunal in principle as we have identified it at para. 10 above.

15.  It does not follow from the fact that a Tribunal has in principle to decide “the question” in respect of every part of the period that it needs to do so all in one go. It can and should apply ordinary case management approaches, which in an appropriate case permit the splitting of issues in order to allow the manageable conduct of complex litigation. Thus in a case where material changes in job content during the claim period are asserted, it may make sense — depending on the particular case — to consider and decide the question first in relation to one part of the period and to deal later, if necessary, with an earlier or later period pre- or post- the alleged change. Taking this course would have the advantage of keeping the issues more simple at the first stage; and it may be that in the end the issues raised by the allegation of changes in job content never have to be considered — either because the decision in the first round has the effect that they could not make any material difference to the outcome or simply because the parties are able to reach agreement. Alternatively, the point may still have to be decided, but the Tribunal may feel able to do so without the benefit of a report by the independent expert: as to this, see para. 24 below. On either of those alternatives the splitting of the issues will have saved time and costs. Of course, if the point does in the end have to be decided by the tribunal at a further hearing, and particularly if a further expert's report has to be obtained, the process will probably have taken longer and been more expensive than if all the issues had been considered at a single hearing. Tribunals are very familiar with having to make this kind of judgment; and which way the balance tilts in any particular case will depend on a number of factors.”

(2)(iii) Work

“There are in many employments — and no doubt in nursing — tasks which fall to be performed only occasionally or at long intervals, but that does not mean that they are not part of the package of tasks and responsibilities that requires to be evaluated (though their infrequency may be important in assessing the weight accorded to them); nor is the job to be regarded as different in the periods when such tasks are actually being performed and when they are not.”

“Of course sometimes a task may last have been required to be performed so long ago that it can no longer be regarded as part of the job at all. If that is really established, there may indeed have been a job change. Drawing the dividing-line between tasks which are rarely performed but still a real part of the job and tasks which have fallen outside the scope of the job through desuetude may not be easy: much will depend on why the task has not in practice been performed.”

(1)                Where an employee is instructed by their manager to do something, then, if they do it, that is surely part of their work.  Moreover, that is so, even if they might have been entitled to say, “But that is not something I am obliged to do.”

(2)                The same is likely to be the case where the manager does not instruct, but requests or encourages, the employee to perform the activity in question.  On the other hand, in such a case, it may be relevant to note for the expert’s benefit (if it is the case) that the employee could not be required to perform that activity.

(3)                Where an employee does something which they have not been instructed, requested or encouraged to do, it may still constitute work if, for instance:

(a)                it is simply a way of doing something which forms part of their work; and/or

(b)                their manager knows that they are doing it, but does not object and thereby tacitly approves of their doing it.

(4)                On the other hand, something may not be part of an employee’s work if they have not been instructed, requested or encouraged to do it, their doing it has not been approved by their employer and it does not simply constitute a way of doing something which forms part of their work.

(2)(iv) Changes in Work

“The duties summarised in this Job Description were all carried out by the Job Holder at the material date, save as indicated as follows: The Job Holder’s role was changed in or around late October 2014, following the arrival of a new Home Manager, when the Job Holder no longer effectively performed in practice the managerial / supervisory responsibilities he had previously performed. The expert should therefore consider whether the outcome of the equal value comparison would be different before and after this time.”

(2)(v) The Care Quality Commission and the Fundamental Standards

(1)                An employee’s work can be adequately described without the proposed list. 

(2)                The expert will be able to have regard to the regulatory framework, including the Fundamental Standards, in assessing the value of each person’s work.  Insofar as he deems it appropriate to take these matters into account, his assessment is likely to be considerably more nuanced than simply saying, for each employee, “Their work is (or is not) relevant to this or that Fundamental Standard.”  

(3)                It follows that it is unlikely that the expert would be assisted by the proposed list.

(4)                However, if the proposed list were to influence the expert’s opinion as to the value of an employee’s work, then that might in itself be an undesirable outcome, since the Court ought not to be dealing at this stage with the evaluation of the employee’s work, but merely the identification of that work.

(2)(vi) Residents’ Behaviour

(2)(vii) Understaffing at Rowan Court

(1)                The CQC inspected Rowan Court in November 2015 and produced a report which gave the home an overall rating of “Requires improvement”.  The CQC stated that it had concerns that there were insufficient staff to meet people’s needs in a timely manner.  It found that there was a breach of regulation 18 of the 2014 Regulations, which provides that:

“Sufficient numbers of suitably qualified, competent, skilled and experienced persons must be deployed in order to meet the requirements of this Part.”

(2)(viii) Narrowing/Expanding the Issues

(1)                Each job description should include the following text:

“The JH was required to be aware of and have respect for each individual resident’s cultural needs.

This was important for the Home to comply with Reg. 10 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, which requires service users to be treated with dignity and respect.”

(2)                Each job description should include the following text:

“The JH had an impact on effective financial management of the Home in that the way in which she carried out her role had a direct impact on the home’s expenditure.

If the JH did not carry out her role properly this could cause the Home to incur additional expenditure, for example the cost of replacing expensive equipment or arranging additional cover.”

(3)                The job descriptions for Mrs Shore, Mrs Hughes and Mrs Garwood should include reference to induction training.

(3) Debra Turner

(3)(i) Debra Turner: Issue 1

“The Claimants have included a number of tasks undertaken in the dementia unit.  As above, the Claimants’ position is that the job description should include tasks for all three units - residential, nursing and dementia given that the JH could have been asked to cover any unit.

While the Defendants accept that the JH could have been asked to cover any unit, the First Defendant does not recall the JH ever working a shift in the dementia unit. The JH contends that she did so on approximately five occasions while working in the dementia unit.”

“A typical day in the Memory Unit is very similar to one on the Residential unit, but involves the care staff providing more support for residents including prompts to remind them of the activity they were engaged in or how to perform certain tasks if they have forgotten. Everything usually takes longer because residents are often easily distracted due to their condition. Conversations can be quite repetitive and a lot more encouragement is needed. There are more care staff on the Memory unit.”

“The JH could be required to work on any unit, but between 2005 and 2018 she only worked on the dementia unit on 3 or 4 days, and she was only transferred between units once, in January 2018, when she requested a transfer from the nursing unit to the residential unit.”

(3)(iii) Debra Turner: Issue 7

“As part of their inspection, the CQC inspectors could ask questions of the JH, if she was on duty, which she would have to answer. These could relate to any aspect of the JH’s work, for example her competency and training, support and supervision received, or staffing levels.

If the JH felt there was any risk to service users she was also expected to raise this with the CQC inspectors.” 

“At the start of each shift, the JH would be given an allocation sheet setting out the rooms for which she was responsible for that shift. On some occasions, the JH would be told to see particular resident(s) first, for example if something had happened overnight. Subject to any such instruction, the JH would plan the order in which to complete room checks and care activities, in light of her knowledge of the residents. For example, she would see non-disabled residents first, because she would be able to complete her care tasks for them more quickly than bedridden residents.”

“At the start of each shift, the JH would be allocated the rooms and other tasks for which she was responsible for that shift. She would also be told if any residents had particular needs or were to be prioritised. Subject to any such instruction, the JH’s routine was to assist non bed-ridden residents first, because she would be able to complete her care tasks for them more quickly than bedridden residents.”

“The JH could be faced with conflicting priorities at any time throughout the day. On some occasions she would seek the senior in charge’s instruction how to deal with them. On other occasions she would use her own knowledge and experience to decide which task to prioritise: for example dealing with another resident first or spending more time with them if they were ill or dying; or deciding when to give residents a shave, bath or shower in response to ad hoc requests during the day.” 

“If a resident rang, or otherwise needed assistance, and the JH was doing something else she would ask a senior how to deal with the situation. If she was not doing anything else she would attend to the resident.”

(3)(vi) Debra Turner: Issue 14

“Other than as described elsewhere in this JD, the order of the tasks the JH carried out when caring for the residents was generally directed by the senior in charge. There were also set ways of completing certain tasks and guidance was provided in the care plans in relation to other issues such as communication . However, subject thereto, the JH had discretion as to how other tasks were performed, for example how best to communicate with residents who had difficulty communicating, and how to deal with unforeseen events like residents bickering with one another or attempting to leave the home. The JH would use her own knowledge and experience of the resident and similar situations to decide how best to deal with these issues as they arose: for example by adapting her way of speaking to suit the resident; or reassuring them about any concerns that had prompted them to try to leave the home.”

(3)(vii) Debra Turner: Issues 16 and 17

“The risk of infection was very low and staff were trained how to deal with this issue, provided with protective clothing and took other measures to minimise the risk. The JH had not caught any infection from a resident in all her years of working at the Home.”

(3)(viii) Debra Turner: Issue 18

“The JH had training on “dealing with a violent episode” because she was at risk of violence from residents.

Violent behaviour could include residents grabbing, striking, scratching or biting the JH. Some residents could be prone to this type of behaviour, in which case the JH would be exposed to this risk whenever she was in personal contact with them.

The risk was greatest from residents with dementia and therefore on the dementia unit. On the residential unit, actual incidents of violence were fairly uncommon.

During her employment, the JH was involved in two incidents in particular.

First, on the nursing unit, when she was washing a resident in his room, he hit her leaving a bruise near her cheekbone.

Second, on the residential unit, when a resident raised her walking stick to strike her own daughter, the JH stepped in front of the resident and persuaded her to lower her stick.

Part of the JH’s role was to understand what the individual triggers of each resident would be, and ensure that she adapted the way she provided care to avoid those triggers.”

“The JH had training on “dealing with a violent episode” because there was a risk of violence from residents, albeit such incidents were few and far between."

(4) Linda Shore

(4)(i) Linda Shore: Issue 2

“The JH worked in a pressurised environment because of her responsibility to complete certain fixed tasks during each shift, as well as helping with Care Assistant tasks, as described elsewhere in this JD. 

Understaffing of the dementia unit where the JH worked increased the work pressure on her. The unit was understaffed in November 2015 and October 2016, but not as at 16 May 2017. Throughout the JH’s employment, including as at the Material Date, it was part of her role to deal with any increased pressures that arose as a result of any understaffing.”  

(4)(ii) Linda Shore: Issue 6

“The JH kept bedroom areas tidy by emptying commodes that residents had used during the night, or during the day. This included a resident in room 17, who used a commode throughout the night, and two other residents.

The JH would then clean the commodes by placing them into a sluice machine.

The JH would also occasionally clean wheelchairs as and when required during the day, for example if a resident spilt their dinner she would wipe the chair clean.”

“The JH would occasionally empty commodes and clean them (by placing them into a sluice machine).  This happened if she assisted a resident to use the commode during the day, but few residents (i.e. only those in rooms 4 and 17) used a commode during the day.

The JH would also occasionally clean wheelchairs as and when required during the day, for example if a resident spilt their dinner she would wipe the chair clean.”

(4)(iii) Linda Shore: Issues 10, 13, 14 and 16 to 19

“The JH was at risk of physical violence from residents. The risk was greatest when she was carrying out personal care tasks in close proximity to them. Some residents would spit at her; try to scratch, bite, punch or kick her; pull her hair; or flail and thrash around. Some residents were more prone to this behaviour than others.

Specific incidents include:

-             On one occasion a resident came out of her room and punched the JH when she was pushing her medicine cart past;

-             Another resident would sometimes pull the JH’s hair, dig her nails in to her arms, and attempt to bite and kick her when she was assisting with personal care tasks;

-             Another resident would sometimes kick out at the JH when she tried to assist her, or punch and dig her nails in;

-             Another resident would sometimes lash and kick out at the JH when she tried to assist her;

-             Another resident would sometimes spit at the JH, or try and punch out.

The JH also witnessed physical violence from residents towards each other, other members of staff and visitors to the Home. Once again this included biting, spitting, punching and kicking.

The JH was required to be good at influencing and negotiation when interacting with residents with challenging behaviour, for example, those who were physically or verbally abusive towards her, each other, other members of staff or visitors to the Home: see further above.

The JH would need to persuade any residents with dementia who were upset or confused and resistant to personal care to allow her to carry out personal care tasks. She would employ different tactics to deal with these situations, depending on the resident. Sometimes she would talk to them softly. At other times she would give them time to settle or brush their hair and calm them that way.”

(4)(iv) Linda Shore: Issue 15

“The JH was required to be good at influencing and negotiation when interacting with residents with challenging behaviour, for example, those who were physically or verbally abusive towards her, each other, other members of staff or visitors to the Home: see further above.

The JH would need to persuade any residents with dementia who were upset or confused and resistant to personal care to allow her to carry out personal care tasks. She would employ different tactics to deal with these situations, depending on the resident. Sometimes she would talk to them softly. At other times she would give them time to settle or brush their hair and calm them that way.”

(5) Ann Hughes

(5)(i) Ann Hughes: Issues 1, 18, 20, 21 and 24

Issue 1

“There was normally one CA, occasionally two, on shift in the Residential Unit with the JH at any given time. There would be two CAs on shift with the JH about once a month.

There was usually one SCA or UM and two CAs on day shift in the Dementia Unit.”

Issue 18

“Understaffing was a constant feature of the JH’s work. Her day typically involved a sense of rushing around trying to get everything done: she faced many competing demands for her time with multiple residents often needing attention; as well as certain essential tasks needing completing like medication rounds.”

Issue 20

“There was time pressure on the JH due to multiple demands and fixed daily requirements such as medication and mealtimes.

For example, when assisting residents generally with serving dinner, a resident may buzz for the toilet. The JH would then need to attend to that resident first, clean them, clean up herself and then go back to the job of serving dinner.

Similarly, if the JH was writing a Care Plan, and a resident buzzed, the JH may have to stop working on the Care Plan to carry out a personal care task, and return to the Care Plan afterwards.

The JH would carry out medication rounds undisturbed unless there was an emergency, for example if a resident had a fall. In that case she would stop what she was doing, press the assistant buzzer and start to assist the fallen resident.”

Issue 21

“Dealing with inadequate staffing levels calls for creativity in getting the essential tasks done to the required standard without appearing to rush the residents or place too great a burden on staff, which might lead to friction.”

            Issue 24

            “There were significant and daily work pressures/ deadlines for the JH and she sometimes missed breaks due to the need to complete required tasks and routines.”

“Understaffing of the residential and dementia units where the JH worked increased the work pressure on her. The units were understaffed in November 2015 until the Material Date. Throughout the JH’s employment, including as at the Material Date, it was part of her role to deal with any increased pressures that arose as a result of any understaffing.”

Dealing with inadequate staffing levels calls for creativity in getting the essential tasks done to the required standard without appearing to rush the residents or place too great a burden on staff, which might lead to friction.”

“The JH faced competing demands for her attention.  For example:

-        When assisting residents generally with serving dinner, a resident may buzz for the toilet. The JH would then need to attend to that resident first, clean them, clean up herself and then go back to the job of serving dinner.

-        Similarly, if the JH was writing a Care Plan, and a resident buzzed, the JH may have to stop working on the Care Plan to carry out a personal care task, and return to the Care Plan afterwards.

-        The JH would carry out medication rounds undisturbed unless there was an emergency, for example if a resident had a fall. In that case she would stop what she was doing, press the assistant buzzer and start to assist the fallen resident.”

(5)(ii) Ann Hughes: Issues 2 and 29

 “JH discussed training needs with junior members of staff in their appraisals.

From at least November 2011 to 11 November 2014, JH conducted inductions for new care assistants. The JH would take them through the induction programme, which included policies on personal care, health and safety and fire. She would also sign-off training sheets in their induction file as and when they completed their internal training; and ensure that they completed external training, such as fire safety and manual handling.

[Parties’ Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to inform the parties if the inclusion of this task has a material impact (and, if so, what impact) on whether or not he considers this role to be of equal value to that of the JH’s Comparators]

JH would decide which care assistants would be shadowed by new care assistants.”

(5)(iii) Ann Hughes: Issue 3

“The JH would supervise new care assistants during their 6-month probationary period. If she noticed anything of concern, she would either provide guidance herself or – for more serious issues – escalate the issue to the Home Manager/ Deputy Manager.

Between 21 March 2010 and 11 November 2014, if the JH escalated any issues to the Deputy Manager/ Home Manager, she would also usually come up with a solution and confirm this with her supervisor before implementing it; or at least provide them with her suggestions to resolve the problem.

[Parties’ Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to inform the parties if the inclusion of this task has a material impact on whether or not he considers this role to be of equal value to that of the JH’s Comparators.]

The problems that would arise during probation would include, for example, refusal to do certain tasks, or disagreement with a SCA. If this kind of problem arose the JH would suggest solutions such as reallocation to a more appropriate unit.”

“If the JH noticed anything of concern during a new care assistant’s 6-month probationary period, she would either provide guidance herself or – for more serious issues – escalate the issue to the Home Manager/ Deputy Manager. The problems that would arise during probation include, for example, refusal to do certain tasks, or disagreement with a SCA.

If the JH escalated any issues to the Deputy Manager/ Home Manager, then she might (but was not required or expected to) propose a solution to resolve the problem (although she did not do this in the period from November 2014 to March 2017).”

“Between 21 March 2010 and 11 November 2014, JH monitored the training sheet for CAs and SCAs and reminded staff when training was taking place and prompted them as necessary to attend.

[Parties’ Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to inform the parties if the inclusion of this task has a material impact on whether or not he considers this role to be of equal value to that of the JH’s Comparators.]”

“Before 11 November 2014, JH monitored the training sheet for CAs and SCAs and reminded staff when training was taking place and prompted them as necessary to attend.

[Parties’ Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to inform the parties if the inclusion of this task has a material impact (and, if so, what impact) on whether or not he considers this role to be of equal value to that of the JH’s Comparators.]”

(5)(v) Ann Hughes: Issue 5

“If the JH was working on the residential unit, and there was no UM working on the dementia unit (which occurred approximately once a month), then the SCA working on the dementia unit might seek guidance or assistance from the JH on any issues that arose on that unit. However, in those circumstances, the SCA (rather than the JH) was responsible for the dementia unit, with ultimate responsibility for both units remaining with the Deputy Manager/Home Manager, who were always on-call.”

“On infrequent occasions, which usually only occurred when she was providing personal care, the JH had to influence and negotiate with residents exhibiting difficult behaviour, for example persuading residents to get up and dressed, receive support with personal care, eat, take medication or dealing with residents getting undressed in communal areas, going into other residents’ rooms and taking things without permission.

In those situations the JH would talk the resident down, ask them to do as she asked, coax them to return to their rooms or to desist from what they were doing.”

(5)(vii) Ann Hughes: Issue 17

“Once every 3 months, the JH would help with distributing deliveries of continence pads.

The Maintenance Operatives would unload 25-30 boxes of pads into the home’s reception area. The delivery would be accompanied by a sheet showing which pads were allocated to which residents. The JH and a CA would go through the sheet and mark up each of the boxes with the resident’s room number. They would then load the boxes onto a trolley, 6 at a time, and take them to the resident’s room. The boxes would be left outside the resident’s room for the CAs to put away.”

“The JH was on her feet most of the time when she was performing care assistant tasks or administering medicine.”

 (5)(ix) Ann Hughes: Issue 25

“The JH was required to update the residents’ Care Plans.

This included considering whether the Care Plan needed to be updated in light of any incidents or issues identified in the resident’s daily progress notes. 

When the JH was not on duty at the Home, another UM or SCA would update the residents’ progress notes and care plans. When the JH came back on shift, she was required to check that they had been completed appropriately. If there were any gaps or issues, she would either leave a note or reminder for them, or speak to them directly if they were on shift.”

“JH encountered difficult behaviour from residents ranging from reluctance/ refusals to co-operate by residents (fairly frequent) through to verbal aggression even to physical violence.

On both the dementia and residential units, there were certain residents with dementia who could become verbally abusive or threatening towards the JH when she was carrying out personal care tasks. The JH witnessed swearing and verbal aggression from residents on most days. Some residents would also shout at each other. However, on the residential unit this was not a regular event.

On both the dementia and residential units, there were certain residents with dementia who could become physical towards the JH when she was carrying out personal care tasks. This could include pushing her away, thrashing around and striking her, or kicking out. The JH dealt with this kind of behaviour on a monthly basis.

If a resident refused to co-operate with personal care tasks, or became verbally or physically abusive, then the JH would try to calm them down. She would also consider whether a specific member of the care team should take over, or the resident just needed some space. 

If residents were shouting at each other the JH would move them apart, or sit between them and have a chat until they calmed down. How long the JH was exposed to any shouting would depend on how long it took to calm the residents down.”

“On infrequent occasions, which usually only occurred when she was providing personal care, and which occurred much less often on the residential unit than on the dementia unit, JH encountered difficult behaviour from certain residents, ranging from reluctance/refusals to co-operate by residents through to swearing and verbal aggression and even to physical violence, which could include pushing her away, thrashing around and striking her, or kicking out.

If a resident refused to co-operate with personal care tasks, or became verbally or physically abusive, then the JH would try to calm them down. She would also consider whether a specific member of the care team should take over, or the resident just needed some space. 

If residents were shouting at each other the JH would move them apart, or sit between them and have a chat until they calmed down. How long the JH was exposed to any shouting would depend on how long it took to calm the residents down.”

(5)(xi) Ann Hughes: Issue 33

“Residents’ relatives would sometimes want to pay a bill for the Home at the weekend when there was no one working in the office.

If the JH had access to the receipt book, she would accept the money and then – witnessed by another carer – put the money into an envelope, which they would place in the safe. The JH would then give the relative a receipt.

If she did not have access to the receipt book, she would tell the relative to come back and pay the following Monday.

Residents’ relatives might also give the JH small amounts of petty cash to pass on to the residents. The JH would pass this money on to the residents and give their relative a receipt.

The JH was required to handle resident’s money securely on these occasions.” 

(6) Clara Hemmings

(6)(i) Clara Hemmings: Issues 1 to 3

“The JH prepared the staff rota 12 weeks in advance. The JH spent an average of 3 hours every three months preparing the staff rota.  The JH would regularly (up to 3-4 times a week) need to revise the rota because of ad hoc requests from the kitchen staff and/or to accommodate the demands of the service.”

 (6)(ii) Clara Hemmings: Issue 4

“The JH would frequently (roughly once a fortnight) have to deal with staffing issues such as absences without prior notice.”

(6)(iii) Clara Hemmings: Issue 5

“The kitchen would be fully staffed when the JH was working alongside 2 other members of the kitchen staff at any one time.

Often the kitchen would be short-staffed, when members of the kitchen team were absent and the JH was unable to find cover. On those occasions, the JH would work alongside only 1 other member of staff in the kitchen, who could be a member of the kitchen staff, or a member of the care or housekeeping staff covering their shift.”

(6)(iv) Clara Hemmings: Issue 6

“Although the Assistant Chef and three Kitchen Assistants also had a reporting line to the Deputy Manager and Home Manager (as well as to JH), the JH would usually be the first and only port of call for the kitchen team each day, either while she was working or on her days off.

On her days off, the other members of the kitchen staff would contact the JH by telephone. This happened on numerous occasions. For example, staff contacted the JH to inform her that the kitchen had run out of various stock items, or that someone was unable to work their shift, or that one of the kitchen appliances had broken down.” 

(6)(v) Clara Hemmings: Issues 7 and 8

“The JH was responsible for carrying out inductions for any new members of the kitchen staff in accordance with Avery’s “Food Safety Management System” (“FSMS”) (October 2010).

During this induction, the JH would emphasise the importance of food hygiene, and talk the new employee through the Essentials of Food Hygiene (Form FS10). The JH would also explain the relevant parts of the FSMS to them. She would then record any training that she had given on the employee’s Training Record Form (Form FS7).

During the induction, the JH would also demonstrate how to use various pieces of kitchen equipment, including, for example, the meat slicer, a probe thermometer and blender. The JH would then record that she had done so on Form FS7.”

“The JH provided this training to one new member of the kitchen staff and to three others whom she considered to be in need of it.”

(6)(vi) Clara Hemmings: Issue 9

“The care staff were responsible for serving cooked breakfasts to residents in the morning. However, the JH remained responsible for maintaining food hygiene standards and ensuring food was served at a safe temperature.

The JH therefore demonstrated to carers involved in the breakfast service how to use a probe thermometer, in accordance with the guidelines set out in Appendix 2 to the Avery FSMS.

The care staff would use the probe thermometer to check and record the temperatures of the first and last meals to be served. That information would then be returned to the kitchen on the trolley. The JH or another member of the kitchen staff would then enter the temperatures onto Form FS4 (the Daily Kitchen Form). On other occasions the JH would ask the carers to complete Form FS4 themselves.

The JH also demonstrated to care staff how food should be presented for service to residents.”

(6)(vii) Clara Hemmings: Issue 11

“The JH spent one full day per month planning the menu for the Home, for the next 4 week period.

In carrying out this task, the JH relied mainly on previous menus used by the Home when it was owned by HC-One. However, she would also include local dishes and suggestions made to her by residents; as well as adapting ideas from seasonal menus provided by the Group Hotel and Catering Manager.” 

(6)(viii) Clara Hemmings: Issue 12

“At least 4 days per week, upon starting her shift, the JH would prepare and bake various confectionery snacks to serve alongside the morning smoothies.

The preparation of the various cake, biscuit and pastry mixtures would take her on average approximately 30 minutes each morning.” 

(6)(ix) Clara Hemmings: Issue 15

“The JH would spend approximately 1 hour per week on the Environment Health Office website, reading the latest updates. She would share any relevant updates with the other members of her team, either verbally or by printing out the relevant information.

The JH would also search online for recipe ideas, especially for snacks such as biscuits and cakes, or for residents with allergies or diabetes. If she saw a recipe she thought the residents would like she would make a note of it, and then later complete the Avery Standard Recipe Form (Form FS5).”

(6)(x) Clara Hemmings: Issue 24

(6)(xi) Clara Hemmings: Issues 27 and 28

“The JH worked primarily in the kitchen, where she would not be in direct contact with residents.

However, she also had some direct contact with residents on a daily basis, for example when she delivered the food trolley to the dining room, served meals on the Nursing or Memory units, or checked fridges on the units.

On those occasions, the JH was exposed to the risk of anti-social behaviour, mental, verbal and physical abuse from residents. The risk was greatest from residents with dementia.

On one occasion a resident threw a domino at the JH. She also witnessed residents spitting and/or swearing at members of the kitchen team, care staff and other residents.”

“The risk manifested itself only infrequently, but was greatest from residents with dementia.”

(7) Stephanie Garwood

“The Home Manager or Deputy Home Manager would usually show a prospective resident’s family around the home if there was a vacant room. If, as was occasionally the case, the family of a prospective resident visited outside the working hours of the Home Manager or Deputy Home Manager, and the Claimant was on shift, she would do this. The JH would provide the available price information as part of this task.”

(7)(ii) Stephanie Garwood: Issues 4-6

“Medication for the residents ran in monthly cycles.

Each month, the Home would receive prescription forms from the GP’s surgery for each of the residents. There would usually be one or two forms per resident for different types of medication. There were up to 32 residents at the Home when it was full.

The medication cycle was carried out in 2 stages. 

1. Checking prescription forms

This stage was usually carried out by the JH together with the other CTL, Shakira Dean (“SD”).

Each of the resident’s had their own Medication Administration Record (“MAR”). This would show if there had been any changes to the resident’s prescription in the last month.

The JH and SD would check each of the resident’s new prescription form(s) against their MAR. If the forms included medication that had been stopped or changed, they would amend or cross out the relevant entry on the form. 

If they had any queries about the prescriptions, or any prescriptions were missing, the JH or SD would contact the GP surgery.

Once they had finished checking or amending all of the forms, the JH would then send them to the GP, who would order the medication from Boots. 

This process took around 2 hours per month.

2. Checking-in new medication

The JH would carry out this process together with SD or the Deputy Manager, depending on which of them was on duty.

Each floor of the Home had a medication trolley that was used for the medication rounds. This had a separate drawer for each of the residents marked with their room number. Each drawer had to contain 1 month’s supply of that resident’s medication.

At the end of the monthly cycle, after the last medication round of the day (at 8pm), the medication trolleys should therefore be empty. There would only be medication left over if, for example, the resident had refused it or their prescription had been changed. If so, the JH would complete a “Destroyed or Returned Medication” form setting out the details. Unused medication was then returned to Boots. 

The next month’s medication would arrive from Boots together with a new MAR for each resident. The JH would check the new MAR against the old one, and amend the new MAR as necessary to reflect any changes that had been made in the last month.

The JH would then check that each of the medications that had arrived for each resident was correct and in the correct amount. She would then place them into the resident’s allocated drawer on the trolley.

This process would be completed after the last medication round of the evening, before the first medication round the next morning. The JH would work beyond the end of her shift into the evening to complete this task, sometimes until as late as 2am the following morning.

Aside from her involvement in the monthly cycle, the JH was also involved in medication audits and ordering interim prescriptions.

Medication audits

Several times per month, the JH carried out an audit of one or more resident’s medication.

This was a stock check of the medication held by the Home for the resident concerned. The JH would check that this tallied with the amount of medication received and taken by the resident that month, and enter the details into an “Individual Medication Audit” form.

Interim prescriptions

The Home would sometimes run low on a particular medication, or require a new medication, part-way through the monthly cycle.

If so, then the JH would write to the GP to request a new “interim prescription”.”

(7)(iii) Stephanie Garwood: Issue 7

“The JH was occasionally asked by the HM/DHM to visit a resident in hospital and report back on the resident’s condition.

The JH would visit the resident to assess their condition and discuss this with the nursing staff. The JH would consider, for example, whether the resident’s mobility and any risk factors had changed since they were admitted to hospital. On at least one occasion the JH was also accompanied by the DHM, and discussed the resident’s condition with her.

The JH would then return to the Home and record the condition of the resident for the purposes of updating their Care Plan.

On at least one occasion, the JH agreed with the DHM that it would not be appropriate for a resident to return to the Home because the Home could no longer meet his needs.” 

“On infrequent occasions the JH was asked by the HM/DHM to visit a resident in hospital and report back on the resident’s condition (including, for example, whether the resident’s mobility and any risk factors had changed since they were admitted to hospital), to inform the HM/DHM’s decision whether the resident should be readmitted to the home.

On returning to the Home the JH would record the condition of the resident for the purposes of updating their Care Plan.” 

(7)(iv) Stephanie Garwood: Issue 8

“On two occasions the DHM asked the JH to accompany her when she met with a potential new resident to assess their needs.

The JH and DHM met with the residents and discussed their needs, looked at their mobility and the extent of their dementia and risk factors, and then considered how their needs could be met by the Home.

The final assessment was made by the DHM.”

(7)(v) Stephanie Garwood: Issues 9 and 10

“Between 22 June 2015 and 18 January 2016, the JH was responsible for writing up Care Plans for new residents. This involved assessing and recording various aspects of the residents’ care needs and how these needs were to be met, such as the resident’s mobility, mental health capacity, medication and family circumstances.

[Parties’ Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to inform the parties if the inclusion of this task has a material impact on whether or not he considers this role to be of equal value to that of the JH’s Comparators]

As part of this process, the JH had to carry out a risk assessment and record details in the Care Plan. This would address any risks to the resident, including any associated with using equipment such as a hoist.

The JH was also required to review care plans and risk assessments for existing residents, to check that they were still current, and to amend or update them as required. She reviewed one or two care plans per day. 

Between 19 January 2016 and 25 July 2016, after the Home had been acquired by Adept, the JH was no longer required to write up care plans and risk assessments from scratch.

However, she continued to review care plans and risk assessments in the same way as before.”

(7)(vii) Stephanie Garwood: Issue 16

(7)(viii) Stephanie Garwood: Issues 18 and 19

“A couple of times per week, the JH worked through her morning and afternoon 30-minute breaks, to ensure all of her tasks were completed.

Sometimes the JH also worked past the end of her normal shift at 8pm, for the same reason. If the JH had to stay late, this was usually for several hours, and sometimes until about midnight.

These problems were exacerbated during periods when there were staff shortages at the home, and/or staff were absent due to sickness.”

(7)(ix) Stephanie Garwood: Issue 24

“If the JH noticed that the Home was running low on stocks of items used for cleaning, like gloves or aprons, she would tell cleaning staff verbally, and they would arrange for extra stock to be ordered.”

“The JH had no responsibility for, and was not required or expected to check or to communicate with anyone about, stocks of items used for cleaning.  However, if the JH noticed that the Home was running low on stocks of items used for cleaning, like gloves or aprons, she would tell cleaning staff verbally, and they would arrange for extra stock to be ordered.”

(7)(x) Stephanie Garwood: Issue 27

“If a resident was taken into hospital, the home would need to keep up-to-date on the resident’s condition, prognosis, and whether (and if so when) they were likely to return to the home.

On some occasions, the hospital would contact the home and provide this information.

On others, the JH would contact the hospital to obtain this information, and pass it on to the Home Manager/ Deputy Home Manager.

Whether or not the JH did so would depend on whether any of the home’s residents were in hospital. If a resident was in hospital, she might do so a few times in the same week.”

 (7)(xi) Stephanie Garwood: Issue 29

“It was not a requirement of the JH’s role that she do any driving, but, without being obliged to do so, the JH drove during her shifts a few times per year. This would either be to the GP surgery to collect urgent prescriptions for residents (around 6 mins drive from the Home), or to the hospital in connection with residents (around 10 mins drive).”

(7)(xii) Stephanie Garwood: Issues 32 and 34

“The JH was exposed to a daily risk of physical and verbal aggression from residents.

On one occasion a male resident who was in the home for a few days for respite care began to act aggressively and became upset as his family had not come to collect him. He started to throw things around. The JH and the other members of the care team had to keep him in the garden to keep the other residents safe. The JH also contacted the police, the mental health crisis team and the GP “out-of-hours”. Eventually, after around 6 hours from the start of the incident, the GP and the mental health team came to assess the resident. He left the Home shortly afterwards.

On another occasion, a different resident became aggressive towards other residents and staff in the Ground Floor lounge area, pushing over chairs and coffee tables. The JH called the police and the “out-of-hours” GP, but eventually she and members of the maintenance team were able to de-escalate the situation by giving the resident some space. The GP eventually came out some hours later, by which time the resident had settled.

On a third occasion, while the JH was carrying out personal care for another male resident, he swore at her and grabbed her by the wrists very hard, pushing her against the bedroom door. The JH tried to reassure him and called for another carer to help her because he would not let go.”

“The JH was exposed to a daily risk of physical and verbal aggression from residents.  This manifested itself infrequently, and usually only when the JH was providing personal care to residents.

On one occasion, while the JH was carrying out personal care for a male resident, he swore at her and grabbed her by the wrists very hard, pushing her against the bedroom door. The JH tried to reassure him and called for another carer to help her because he would not let go.”

(7)(xiii) Stephanie Garwood: Issue 35

“During a typical day at work, the JH spent about 70% of her time either standing or walking around. She was mainly on her feet when carrying out the medication rounds, providing personal care and serving meals.

The other 30% of her time that she spent sitting down was mainly spent completing written tasks, such as care plans, records of professional visits and daily notes.”

(8) Tomy Thomas

“The JH’s plumbing work included identification and removal of “dead legs” (which pose a legionella risk), and fitting showers and washbasins.  These are tasks which he was required to perform only infrequently.”

(8)(ii) Tomy Thomas: Issue 26

(8)(iv) Tomy Thomas: Issue 29

“The JH was expected to identify rooms which required redecoration and to redecorate them.”

(8)(v) Tomy Thomas: Issue 30

(8)(vi) Tomy Thomas: Issue 31

(8)(vii) Tomy Thomas: Issue 33

“The JH had an Indian qualification, the details of which are unknown, but was not qualified to carry out electrical works in the UK under the Wiring Regulations.”

(8)(viii) Tomy Thomas: Issue 37

“When a room was to be refurbished, the JH was asked to advise the Home Manager on the tasks that would be required to result in the desired room, including whether any finishes would require specific expenditure as well as how long each of the required tasks would take. The JH would then apply his planning and organisation skills to plan the decoration or building work required. Once approved by the Home Manager, the JH would be responsible for the management of the work, including managing the performance of any external contractors and hitting project deadlines.”

(8)(ix) Tomy Thomas: Issue 42

(8)(x) Tomy Thomas: Issue 44

(8)(xi) Tomy Thomas: Issue 47

“Although it was not a requirement of his job, the Job Holder was encouraged to, and would often, take a leading role in religious events.”

(9) Anil Chakkummoottil

(9)(i) Anil Chakkummoottil: Issue 26

(9)(ii) Anil Chakkummoottil: Issue 31

“Although it was not a requirement of his job, the Job Holder was encouraged to, and would often, take a leading role in religious events and where events were celebrated in other locations, the JH would accompany residents.”

(10) Robert Brooks

(10)(i) Robert Brooks: Issues 7, 15 and 16

(10)(ii) Robert Brooks: Issue 11

“When checking the condition of internal fire doors, the JH was expected to adjust a fire door or fit a new intumescent strip.”

(10)(iii) Robert Brooks: Issue 12

“In practice, he did so once in his six years’ employment.”

(10)(iv) Robert Brooks: Issue 20

(10)(v) Robert Brooks: Issue 22

“The JH had various responsibilities relating to fire safety. He was required to undertake the regular checks on fire safety equipment and alarms as set out in the Maintenance Manual. He is described as the Fire Safety Manager in the home's fire safety risk assessment. He trained and supervised other staff on fire safety and fire drills. He was responsible for triggering the alarm to start the monthly fire drill, observing and timing the drill, turning off the alarm, and reporting any problems identified to the Home Manager. On occasion, he also took the register. He received training in the fire safety-related tasks set out in the Maintenance Manual, training relating to fire safety issues as part of a standard suite of induction training and some computer-based, fire safety specific training.”

 (10)(vi) Robert Brooks: Issue 31

“The JH was involved in the creation of a bar and barbecue area, erecting shelving and a bar top. The JH purchased the timber and ranch posts, which he then cut to length and fitted. He then installed decorative flower planters and a gate and fence.”

(10)(vii) Robert Brooks: Issue 32

“The JH contributed to the refurbishment and redecoration of the home by advising whether rooms required painting (and whether this was a full re-paint or touch up) or other maintenance work such as new carpet or new curtains.  When a resident vacated their room, the JH would fill holes from pictures and repair any damage and sometimes repaint the room.  The JH would source any relevant materials which he required and would provide updates to the Home Manager at Head of Department meetings.”

8(viii) Robert Brooks: Issue 43

8(ix) Robert Brooks: Issue 48

“Before 24 April 2014, the JH was not required to be “on-call”.

From 24 April 2014, the JH was required to be “on-call” until 8pm only. Thereafter, in an emergency, staff were to required to contact the “on-call” phone. The Home Manager would then decide whether the issue was sufficiently important to contact the JH.

In the last 12 months of his employment, the JH was only called out on (at most) 2 occasions.

[Note to the IE: The IE is asked to include this task in his valuation of the JH’s role. The IE is also asked to specify in his report:

1. Whether the inclusion of this task affects his assessment of the value of the role;

2. If so, what effect it has; and

3. In particular, what effect, if any, it has on his scoring for this role.]

“The JH was on call (in the sense that he was expected to attend the home when needed) in the case of emergency maintenance issues. He attended three call outs during the last twelve months of his employment.

The JH agreed (but was not obliged) to work additional shifts where this was needed to complete the refurbishment of rooms.  For instance, early in his employment, he worked 7 days per week for a month to enable him to carry out refurbishments; and in the last 12 months of his employment, he worked an additional 12-hour night shift painting residents’ rooms on four or five occasions.”

8(x) Robert Brooks: Issue 51

“The JH had an impact on the effective financial management of the home in that his repairs, maintenance and identification of issues had a direct correlation with the home’s expenditure on replacement equipment and external contractors. The JH also ensured he kept all maintenance costs within budget.”

“The JH had an impact on effective financial management of the Home in that the way in which he carried out his role had a direct impact on the home’s expenditure.

If the JH did not carry out his role properly this could cause the Home to incur additional expenditure, for example the cost of engaging contractors or replacing expensive equipment.”

8(xi) Robert Brooks: Issue 53

“The JH was responsible for the integrity and security of the domestic assistants’ cupboard where COSHH chemicals (which are substances hazardous to health and covered by the Control of Substances Hazardous to Health Regulations, such as certain cleaning fluids) were kept, for example by maintaining adequate shelving and appropriate locks.”

(9) Summary and Next Steps

(10) Postscript

(1)                In paragraph 37 I quoted from Mr Thomas’ job description.  The Defendants invited me to say more about how that part of his job description came to be agreed.  If that becomes a material issue at a later stage, it can be addressed then.  I do not consider that it is necessary to go into that issue in this judgment. 

(2)                The Defendants invited me to change the word “challenging” to “difficult” in the wording set out in paragraph 95 above for inclusion in Mrs Shore’s job description.  Rather than change the wording, I provide the following clarification.  The word “challenging”:

(a)                is not intended to mean anything different from “difficult”, which is used in the wording in paragraphs 118 and 126 above;

(b)                is not used in any technical sense or by reference to any particular definition; and

(c)                is illustrated by the examples given in the wording in paragraphs 95, 118 and 126.

(3)                Both parties invited me to state how often Mrs Shore encountered challenging behaviour.  I find that she experienced physical violence or verbal abuse from residents only infrequently. 

(4)                I confirm that my intention in paragraph 171 was that the wording quoted in paragraph 170 should not be included in Mrs Garwood’s job description.  On the other hand, what she did on the two occasions referred to in that wording was part of her work.  The Claimants proposed that this change in her work should be dealt with in the same way as other changes, with a note similar to that set out in, for instance, paragraph 113 above.  I do not consider that it would be appropriate to adopt a suggestion such as this made after judgment was provided in draft.  As indicated in paragraph 42 above, this would still leave any question as to the effect of this change in Mrs Garwood’s work to be dealt with at a later stage, if it needed to be dealt with at all.