Claimant v Busy Bears Nursery Ltd — 2024

The Claimant was employed as Deputy Nursery Manager from 23 May 2022 and was promoted to Nursery Manager on 1 September 2022. Her contract provided for three months' notice and 5.6 weeks' annual leave. She passed probation on 6 March 2023. The Respondent then received an anonymous Ofsted-related concern on 2 April 2023. The tribunal found that letter was not, of itself, especially serious or urgent and did not point to immediate summary dismissal.

The tribunal found there were two terminations of employment. On 4 April 2023 the Claimant was told 'it isn't working' and the Respondent later confirmed, by email of 6 April 2023, that the dismissal was on the basis of suitability and that she was required to work her three months' notice. The tribunal held that this was a dismissal on notice rather than a summary dismissal, and that it was inconsistent with the Respondent then treating the matter as a serious gross misconduct case. The Respondent later reviewed the setting and on 11 April 2023 dismissed the Claimant with immediate effect.

The tribunal rejected the Respondent's case that it was entitled to terminate without notice. It found there was no documentary evidence supporting the allegations relied on in the 11 April 2023 dismissal email, that the allegations had not been properly put to the Claimant before dismissal, and that the Respondent had failed to comply with disclosure requirements. Applying the burden of proof and the summary-dismissal authorities it cited, the tribunal concluded the Respondent had not proved facts capable of justifying summary termination, including by way of after-discovered misconduct. The Claimant's wrongful dismissal claim therefore succeeded, and so did her claim for accrued annual leave/holiday pay for the notice period.

The judgment did not fix compensation. The tribunal directed the Claimant to provide evidence of earnings between 11 April 2023 and 4 July 2023 and invited both parties to make written submissions on the ACAS Code before it would issue a separate compensation order. It also recorded that the Claimant had said she had mitigated some loss through temporary agency work, which would be relevant to the later remedy stage.