Care worker dismissed over second job during pandemic

Wednesday 03 March 2021

A care home worker who failed to disclose her supermarket job to her employer during the pandemic, and exceeded her maximum working hours, has failed in her claim for unfair dismissal compensation.

Angelina de Sousa had worked for Caring Homes Healthcare Group Limited, which operates Beaumont Villa and L’Hermitage Care Centre in Jersey, from May 2008 until 10 July 2020 when she was summarily dismissed with immediate effect for gross misconduct.

Earlier in the year, Collette Bonner, the Home Manager, had contacted all staff asking them to disclose “any additional employment outside the company”, following recommendations for the Community Residential and Nursing Home Sector from the Government. 

“It is important that the company is made aware so that you are not compromising our colleagues and our residents' health,” Ms Bonner wrote.

Pictured: All employees were asked to disclose any other roles they might have.

Ms de Sousa, who was at the time working a 25-hour job at a supermarket, put a line through the space on the form she was sent and signed it on 16 April.

On 2 May, she had a supervision meeting with her supervisor during which she informed them of her second job.

Three days later, Ms Bonner received an email from another employee relating to allegations against Ms de Sousa about her behaviour towards other staff. 

After contacting the company’s HR department, Ms Bonner invited Ms de Sousa to an investigatory interview on 19 May to discuss the complaint, her second job, the fact it put her in excess of 48 hours per week in contravention of the standards of the Jersey Care Commission and her failure to disclose the role.

Ms de Sousa denied having bullied anyone but admitted she had lied about her second job. She said she understood the risks associated with covid-19 but that the store was short-staffed, and her partner was not working. She said that she was scared to disclose her second job and that other staff had second jobs. 

Miss Bonner said she knew of staff with second jobs who had declared them, enabling her to put risk assessments in place.

Pictured: Ms de Sousa worked more hours than the Jersey Care Commission allowed.

A disciplinary hearing followed on 19 June 2020 with Samantha Booty, a Home Manager for a care home in England.

 Ms de Sousa again apologised for her second role, which she said she had left the previous month. She confirmed she was aware of the “Working Time Policy” which stated a maximum working week of 48 hours and denied all allegations of bullying. 

Ms de Sousa was then summarily dismissed on 10 July 2020. In her letter, Mrs Booty cited the reasons for her decision as “(i) lying on the declaration about her second job despite being asked for the information in order to protect residents and staff in the middle of a pandemic, (ii) failing to inform the Respondent that she was working more than 48 hours a week and (iii) bullying another member of staff”.

Ms de Sousa appealed the decision saying she hadn’t bullied anyone but had in fact been the one bullied. She also claimed the home management shopped in the supermarket she worked at and therefore knew of her second role and that other members of staff also worked there as second jobs.

Pictured: Ms de Sousa brought a claim for unfair dismissal before the Employment Tribunal.

Her appeal was dismissed, and Ms de Sousa then submitted a claim for unfair dismissal to the Employment Tribunal, saying she had been fired for having a second job when lots of her colleagues also had day jobs.

She also claimed that Miss Bonner had been aware of her second role for over a year and the bullying allegations were false, arguing that the employee bullying her had in fact been bullying her at the supermarket.

The care home argued that the dismissal had not been unfair as Ms de Sousa had breached its policies on working time and secondary employment, presented a risk to residents by working at the supermarket and bullied a member of staff. 

The case was heard by Dr Elena Moran, the Tribunal Chairman, who concluded that the home had followed “a reasonable procedure”, adding that the decision to summarily dismiss Ms de Sousa for misconduct was “within the band of reasonable response."

“Working more than 48 hours a week was clearly a serious matter,” she wrote in her judgment. 

“There was very little evidence before the Tribunal as to how the Respondent dealt with second jobs and working more than 48 hours per week prior to the pandemic. 

“Whatever the historic approach of the Respondent, from 1 April 2020 the Claimant can have been under no illusion that if she had a second job she had to disclose it. Government guidance required all staff to self-isolate when not at work. This was essential to protect the residents and staff from Covid-19. 

“I accept the Claimant’s evidence that she had bills to pay and that giving up her second job would cause her financial hardship, but that does not excuse what she did. There is no doubt in my mind that a decision to dismiss on this ground was reasonable.”