(1) Ms Sophie Louise Stead (2) Ms Abbie Georgia Rain v Holley Park Academy — 2019

On 21 November 2016 X, a nursery child, left the Nursery while the first claimant was in charge of dismissal and the second claimant was assisting. The tribunal found that the claimants were following the dismissal practice they had used since the first claimant took over in late September 2016, that the procedure was not set out in writing, and that the respondent changed the Nursery dismissal arrangements immediately after the incident. The tribunal accepted that the incident was potentially serious but no harm occurred.

The tribunal found the respondent's response on 21 and 22 November 2016 was a knee-jerk reaction. SR suspended both claimants without considering alternatives, and the LADO referral made by SR included the first claimant's and her daughter's details even though there was no suggestion the first claimant posed any risk to a child. GW's investigation reports were found to be partial and to omit the post-incident change to the dismissal procedure. The tribunal also found the second claimant was effectively bullied at the 9 December 2016 investigation meeting when she was repeatedly told it was her opportunity to tell the truth.

Both claimants raised grievances complaining about training, the absence of a written Nursery dismissal procedure, the investigation, and the LADO referral. DH's grievance investigations were found to lack independence and rigour because he refused to engage with the central complaints and instead relied on HR advice. The grievance appeal panel likewise refused to examine the core complaints and simply followed HR advice. The panel upheld the complaint about the inappropriate distribution of the LADO referral form, which had been sent to the second claimant in error and later retrieved and destroyed.

The tribunal held that neither claimant made a protected disclosure within the meaning of Part IVA ERA 1996 because they did not identify any legal obligation or health and safety concern and did not show that they believed they were blowing the whistle or that the disclosures were in the public interest. The whistleblowing detriment claims and the automatic unfair dismissal claims therefore failed. By contrast, the cumulative effect of the suspension, the investigation reports, the handling of the grievances and appeal, and the way the matters were dealt with after the incident destroyed trust and confidence, so both claimants were constructively dismissed. No final monetary remedy was determined in this liability judgment and a remedy hearing was ordered separately; the tribunal recorded only a preliminary view that the second claimant's section 38 claim would succeed, but that was expressly provisional.