Ms M Cole v RB Active Care Ltd — 2024

The claimant withdrew her complaint about unpaid annual leave at the start of the hearing, and the tribunal did not determine that matter on the merits. The remaining claim was unfair dismissal. The respondent accepted that it had dismissed the claimant, and the tribunal found that misconduct was the principal reason for dismissal and was, in principle, a potentially fair reason under section 98 of the Employment Rights Act 1996.

The tribunal accepted that the claimant had repeatedly used her mobile phone at work to check that her daughter had got home safely, contrary to the respondent’s mobile phone policy. It also accepted that she had allowed children to touch her hair, style her hair, and on one occasion massage her, and that she had draped her hair over a child’s head. The tribunal rejected the claimant’s evidence that she had never been told this was inappropriate and did not accept that the conduct was acceptable creative play in a childcare setting. It found the respondent was entitled to regard the admitted conduct as misconduct and to be concerned that it might be repeated.

The tribunal found flaws in the respondent’s investigation and disciplinary process. It held that the respondent did not pursue follow-up questions that a reasonable employer would have asked about the non-admitted allegations, including whether the complaints originated from more than one child. It also found that the respondent wrongly treated the claimant as having refused entry to a child when that was not what she had admitted, and that the claimant was not given the detail of the meeting with JC. The appeal decision accepted that the claimant had not in fact left a child outside, but still upheld dismissal.

Overall, the tribunal concluded that the dismissal was unfair because the investigation, taken as a whole, fell outside the band of reasonable responses. However, it also held that had a reasonable investigation been carried out, a reasonable employer would still have dismissed the claimant for the admitted misconduct. It therefore limited any Polkey loss to one week’s pay, said any basic award should be reduced by 80% for contributory conduct, and did not further reduce the compensatory award for contributory fault.