East Riding of Yorkshire Council v Cowton - Correct approach to considering disparity of treatment [2009] EAT

Care worker Mrs Cowton was put through a full capability procedure due to short-comings in her care for patients. Later on she was dismissed, following a disciplinary hearing, for giving a resident a mashed meal instead of a puréed meal as specified in her care plan, causing her to choke. The investigation into Mrs Cowton's actions had revelaed that other car workers did exactly the same thing, but at her disciplinary hearing Mrs Cowton did not say that she had been "simply following practice" and offered no explanation for her failure to follow the care-plan. The manager who dismissed her concluded that there were no grounds for concluding that she would not do the same again. Of particular relevance was the fact that she had been through the capabvility procedures and so, of all staff, should have known better. Other care workers were not disciplined or dismissed: there was a suggestion that they were "counselled".

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