Lily blows time!

Posted: 31st March 2011

The owner of a residential care home has been ordered to pay compensation to a former supervisor after she was subjected to detrimental treatment and unfairly dismissed.LilyF

Ian Darbyshire, proprietor of the Moorlands Residential Home in Merriott, was found to have unfairly dismissed Lily Flurey in June 2010 a week after the Care Quality Commission delivered a “zero star - poor” rating to the home following an unscheduled visit on 8 June.

Brave Lily, a mother of four who swam the English Channel in 2007 to raise thousands of pounds for the Dorset and Somerset Air Ambulance charity, battled for more than two years to improve standards of care for elderly residents whose families pay hundreds of pounds a week to the home. She refused to be beaten by Mr Darbyshire and his senior staff, even though, Lily said, “they made my life hell”.

Mrs Flurey joined the staff at Moorlands in June 2006 and was applauded for her high standards. One appraisal during her first year rated her “excellent” in all five skills categories and said of her attitude to other staff, clients and relatives that she “cannot be faulted”.

When, following her promotion to supervisor, she began to draw the attention of Mr Darbyshire to systemic failures and shortcomings of junior staff, Mr Darbyshire and his team were unreceptive.

Lily’s complaints, first to the owner of the home and subsequently to the regulatory authorities, CSCI and CQC, were said on her behalf to be protected disclosures under what are commonly known as whistleblowing provisions of the employment rights legislation. Public interest disclosures have been protected since 1998 following enquiries into major disasters (see Williamsons’ website news story of 29 May 2010, Whistle while you work?)

The respondent in this case dismissed the complaints as “merely matters of housekeeping”. Further, he said that the disclosures could not be protected because Mrs Flurey made them in bad faith.

The Tribunal disagreed, finding that the allegations were of breaches of legal obligations and of endangering the health or safety of individuals - “we find that the claimant had high standards of work but no higher than would reasonably be expected in a well-run residential home”.

Frustrated and concerned, Mrs Flurey first complained to CSCI in September 2008 when it was noted that: -

“Service users are not being washed properly, service user left covered in faeces. She approached the manager and was told to keep her mouth shut; all other staff had been told not to talk to her.”

The Commission noted complaints of poor personal care and neglect of service users in the home, notably those with dementia, and hostile and intimidatory behaviour of the owner and his manager, Jayne Dadzitis, towards Mrs Flurey. An unannounced inspection was carried out on 23 September 2008. The home’s rating was reduced to “zero star” intended to indicate that “the people who use this service experience poor quality outcomes”.

The following day, Mrs Flurey told the Tribunal, she was called into a meeting with Mr Darbyshire and manager, Jayne Dadzitis. Mr Darbyshire, she said, was literally “spitting with rage” as he ranted and raved at her for twenty minutes shouting “I know it was you”. She was “scared stiff and feared physical violence”.

Mr Darbyshire and Mrs Dadzitis both told the Tribunal that they could not recall any such meeting. The Tribunal said “in our estimation the respondent is a highly combative individual. We found the claimant to be a credible witness and we accept her account of what happened”.

Soon afterwards, Mrs Flurey was informed by letter that there had been complaints against her by a number of members of staff. She was given no detail and the respondent admitted that no statements of evidence were obtained from those alleged to have complained about her behaviour. Of the subsequent disciplinary meeting the Tribunal said “no minutes were taken by or on behalf of the respondent and we find that to have been a common feature of the respondent’s disciplinary proceedings”.

During the following twelve months improvements at the home saw the rating rise to two stars during 2009 but matters had deteriorated again by early 2010. A very frail 97 year old resident went unaccompanied to the local store to buy a bottle of whisky and Mrs Flurey was soon afterwards called to a disciplinary meeting and received a final written warning.

The Tribunal found: -

“No notes were taken of the disciplinary meeting. It is not disputed by the respondent that the claimant was not given copies of three final notes to which we have been referred. We have seen a letter written by Mr Darbyshire to the claimant dated 20 April which purports to record the events of 8 April. That letter does not contain any record of the claimant’s version of events and she does not appear to have been asked to give her version of events.”

The Tribunal accepted Mrs Flurey’s evidence that at the disciplinary meeting she asked to see the notes that he held and was told that they were “confidential”. She said that he was angry, tapping his finger on the accusatory statements which remained face down on the desk in front of him.

Mrs Flurey’s appeal against that final warning was dismissed on the same day as she was invited to a further disciplinary meeting, at which it was alleged that she had neglected a new resident at the home, leaving her commode full whilst she ate her breakfast. Mrs Flurey denied the allegations but, the Tribunal found, her employer “made no real attempt to elicit the claimant’s version of events”.

The Tribunal was told that one week prior to the incident complained of, Mrs Flurey had overheard a conversation between manager, Jayne Dadzitis, and deputy manager, Shirley Ham. She said she heard Mrs Ham say “that little bitch Lily is going to be demoted, she is not fit to be a supervisor” and “must be got rid of”. Mrs Dadzitis laughed but said that Lily would not go easily. Mrs Ham was alleged to have replied “leave it to me”. In cross-examination Shirley Ham denied the allegation but Mrs Flurey was not challenged. The Tribunal accepted that a discussion along these lines had taken place between the two senior managers.

It was only the day before the alleged neglect of the new resident that the CQC had again visited the home, again following a complaint by Mrs Flurey, and then returned the rating to “zero star”. Despite the change in rating, Mr Darbyshire continued to advertise on the front page of the Western Gazette in October and November 2010 that his home was “rated as good by CQC”. When asked to comment he claimed to be “shocked”, concluding that “amendments weren’t effected in time for publication”. In response the newspaper's advertising department told us that “there were no changes requested”.

Michael Williamson took on the case when approached by Mrs Flurey in September last year, one which was to occupy the Employment Tribunal in Exeter for nearly three days at the end of January 2011 and a further half-day, to deal with compensation, last week.

Said Michael, “this is a real triumph for justice and I am very glad that Lily came to us when she did. She now has a formal - and unanimous - decision of three members of an Employment Tribunal that she was unfairly dismissed and victimized for justifiably blowing the whistle on a number of occasions”.

“We have been asked not to say any more than that compensation was substantial, including a very significant award for injury to feelings. In making this assessment, the Tribunal took into account claims for mild psychological injury and aggravated damages based on what was alleged to be high-handed and oppressive behaviour of the respondent.”

He added “It is a welcome demonstration that these important legal provisions do have teeth, though it takes somebody as courageous as Lily to make it happen. She is an admirable woman.”