P O’Hagan and S Singh Miss G Neill v Big Bird Nursery (Larkhall) Limited (in Liquidation) — 2022

The Claimant worked for the Respondent nursery from January 2017, moved to a qualified practitioner role in September 2017, and later agreed to a term-time contract in mid-2018. She was absent from work from October 2018 and brought a holiday pay claim based on the period when the nursery was closed during her sickness absence. The Tribunal held that the term-time contract gave her 123 hours' annual leave, but that she had to book and take that leave in order to trigger holiday pay. Because she did not take holidays during the relevant period, and because the claim as pled sought payment far beyond her contractual and WTR entitlement, the unlawful deduction from wages claim was dismissed.

On the whistleblowing claim, the Tribunal found that the Claimant made protected disclosures to management about broken seat belts and child restraints in transport, insufficient car seats on 27 September 2018, food and snack concerns in April 2018, and risky play involving children climbing and jumping from a shed on 24 April 2018. It rejected reliance on communications to parents and to the Parent Voice committee as protected disclosures, including some messages to MD, because they were not made to persons within ss43C-F ERA and, in some instances, did not disclose information capable of tending to show a relevant failure.

The Tribunal then considered the alleged detriments individually and as a whole. It found no protected-disclosure motive in the withdrawal of an offered deputy manager role, the way the Parent Voice issue was handled, the move to term-time working, the lack of fire and tools/SVQ training funding, the 2 October 2018 suspension and disciplinary process, the complaint about payslips, the SSSC complaints, or the failure to return the Claimant to work. It held that the disciplinary process was an internal response to conduct allegations about photographs sent to MD, that the Respondent made repeated efforts to enable participation, and that the Claimant had in fact sent the photographs. The Tribunal concluded that the protected disclosures did not materially influence the Respondent's actions and dismissed the s47B claim.