Claimant v Busy Bears Nursery Limited
Outcome
Individual claims
The tribunal found the respondent failed to prove that the claimant's conduct justified summary dismissal. The respondent alleged gross misconduct relating to child protection, safeguarding, and regulatory breaches but provided no documentary evidence to support the allegations. Without corroborating evidence, the respondent did not discharge its burden of proof that the allegations were factually made out or that they amounted to gross misconduct justifying summary termination.
The tribunal found the claimant was entitled to accrued but unpaid holiday pay that would have arisen during the three-month notice period she was contractually entitled to. As the wrongful dismissal claim succeeded, the respondent was obliged to pay for statutory annual leave that would have accrued during the notice period.
Facts
The claimant was promoted to Nursery Manager in September 2022 and passed her probationary period in March 2023 with positive feedback. In April 2023, the respondent received an anonymous whistleblowing letter from Ofsted raising concerns about the nursery. On 4 April 2023, the claimant was dismissed on three months' notice. On 11 April 2023, after conducting a review of the nursery, the respondent summarily dismissed the claimant alleging gross misconduct relating to safeguarding, regulatory compliance, and falsification of records. The claimant was provided with no documentary evidence supporting the allegations and was not given an opportunity to respond to them properly.
Decision
The tribunal found the claims for wrongful dismissal and holiday pay succeeded. The respondent failed to discharge its burden of proving the allegations of gross misconduct were factually made out, providing no documentary evidence to support them. The tribunal found the respondent deliberately withheld disclosure and had only paid lip service to the tribunal's case management orders. The claimant was entitled to damages for breach of contract representing her three-month notice period and accrued annual leave. Remedy was adjourned for calculation after consideration of mitigation and ACAS Code breaches.
Practical note
Employers must provide cogent documentary evidence to prove gross misconduct allegations when seeking to justify summary dismissal; mere assertion is insufficient to discharge the burden of proof, even where after-discovered misconduct is legally permissible as a defence.
Legal authorities cited
Statutes
Case details
- Case number
- 1304779/2023
- Decision date
- 4 April 2025
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- education
- Represented
- No
- Rep type
- in house
Employment details
- Role
- Nursery Manager
- Service
- 10 months
Claimant representation
- Represented
- No