Miss S Flynn v Represented by:15 Mr T Merck, Solicitor Tender Loving Child Care Centre Limited — 2021

Miss S Flynn was employed by Tender Loving Child Care Centre Limited as team leader in the baby room of the nursery from 4 September 2008 until her dismissal with effect from 26 March 2020. The respondent alleged that she had encouraged children to say "smelly Laura" to a colleague on or around 4 October 2019 and had encouraged children to kick the colleague on or around 18 October 2019. The tribunal found that the respondent had a potentially fair reason for dismissal, namely misconduct, and that Ms Deighan genuinely believed those incidents had occurred.

The tribunal accepted that there were reasonable grounds for the respondent to believe the 4 and 18 October incidents had occurred, based on the evidence of LM and JG, but it did not accept that there were reasonable grounds to conclude that those incidents formed part of a wider campaign of harassment. Ms Deighan had relied on broader allegations about LM's private life and an ongoing picture of bullying, but those wider matters were not put to the claimant as part of the disciplinary case. The tribunal held that the respondent failed to carry out as much investigation as was reasonable in the circumstances because the claimant was not given a proper opportunity to answer the allegation that the two incidents were part of a broader campaign.

The appeal did not cure that defect because it was not a full rehearing and did not give the claimant a proper chance to respond to the wider campaign allegation. The tribunal therefore found the dismissal unfair under section 98(4) ERA 1996. It rejected any deduction for conduct. However, applying Polkey v A E Dayton Services, it held that there was a high likelihood the claimant would have been dismissed in any event, but not with 100% certainty, and applied a 75% reduction to compensation.

The parties agreed the pre-reduction basic award at £3,315.01 and the compensatory award at £16,984.30, including £300 for loss of statutory rights. After the 75% Polkey reduction, the tribunal assessed the basic award at £828.75 and the compensatory award at £4,246.08, making a total monetary award of £5,074.83. The prescribed element was £4,171.08 for the period from 24 March 2020 to 23 March 2021.