Unfair dismissal of nursery worker

An employment tribunal outcome has raised the issue of failing to properly investigate after a nursery worker who encouraged children to kick her co-worker and call her names was unfairly dismissed.

The court decided that the nursery, Tender Loving Childcare Centre failed to properly investigate its assumption that the actions of the claimant were part of an ongoing campaign of harassment and bullying following allegations from another member of staff. Whilst the award was reduced by 75% to reflect the likelihood that the employee would have been dismissed had a fair process been followed, it is a case that might not have arisen had the employer managed the issue properly.

The tribunal heard that the employee was a team leader, managing staff in the baby room. Prior to the tribunal she had no formal disciplinaries.

A situation arose when another employee approached nursery manager because she was “upset” about a situation in the baby room with the claimant. This was followed by a second complaint letter which contained a number of allegations, including that the children to “walk around saying ‘smelly Laura’” because the claimant was “annoyed” that one of the children learned to say another employee’s name first.  Other allegations related to the claimant allegedly making remarks about this employee’s personal life and relationships, calling her “gay” and a “Hun” as she was a Rangers football team.

Investigatory meetings were held with the baby room staff and all of them corroborated the claims but one of the staff said they assumed it was a “joke”.  The claimant, in her interview, denied the allegations. 

The claimant was dismissed for misconduct. However, the tribunal said it was “not satisfied” that the nursery carried out a sufficient investigation as the investigation manager had “made it clear” that she relied on the content of the written complaint when deciding that the claimant was at the centre of a campaign of harassment. The nursery also failed to put that all of the allegations to the claimant in interviews, or at the subsequent appeal process.

The claimant was awarded £16,984.30 in compensation, but this was reduced by 75 per cent to £4,246.08 as it was deemed to be likely that she would have been dismissed in any event had a fair process been followed. 

This case demonstrates yet again, the need for employers to conduct fair and balanced investigations.  In this case, the managers involved were thought to have “taken sides” and it is important that if this is a likely to occur, the employer uses an impartial investigator and disciplining manager.