Appeal No. EAT/1018/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 February 2001

Before
HIS HONOUR JUDGE COLLINS CBE
MR B V FITZGERALD MBE
MS B SWITZER

MRS S THOMAS T/A TEDDY BEARS DAY NURSERY	APPELLANT

(1) MISS S A OVERTON (2) MRS D MARSH	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IAN WILSON
Solicitor
Instructed by
Messrs Dean Wilson Laing
Solicitors
96 Church Street
Brighton
East Sussex
BN1 1UJ	

JUDGE COLLINS

1.	This is a preliminary hearing of an appeal against the decision of an Employment Tribunal sitting at Brighton whose Extended Reasons were promulgated on 5 July 2000.  They held that both Respondents had been unfairly dismissed by the Appellant who is the proprietor of a nursery and awarded Mrs Overton an overall sum of £2,089.25 and Mrs Marsh a sum of £3,619.35.

2.	This case has caused us a good deal of concern.  The Respondents had been employed in the nursery having the care of up to 23 children, Mrs Overton having been employed since 1994 and Mrs Thomas since 1992.  They were the subject of allegations in July 1999 made by the Local Authority.  Out of the blue, so far as we can tell from the papers, is that the Appellant was called to a meeting at the Local Authority on 19 July 1999 and shown, but was not allowed to copy, an eight page dossier making a series of allegations that the Respondents had behaved badly towards the children.  I am not going to use the word ‘abuse’ because that may give an overall impression which may be quite justified by the details of the individual allegations.

3.	The Appellant was substantially dependent upon the Local Authority for referrals.  It appears that she took no part in the daily running of the nursery herself and on 19 July simply made the decision on the way back to the nursery premises that she was going to dismiss both these Respondents.  And so she did, without giving them any opportunity to respond to the allegations which had been made.  In effect it has been argued that the Appellant acted as she did out of economic duress because she believed either that Local Authority would put her out of business or that the parents would take their children away.  All of this was speculative and had to be balanced against basic justice where serious allegations are made against employees working in this kind of environment, of giving them an opportunity to consider and respond to any allegations which are made against them before taking the draconian step of dismissing them.  Such a step inevitably has the effect of preventing them from working in this kind of environment again, whether the allegations against them are true or false.  The Appellant’s conduct causes a great deal of concern.

4.	However, the Tribunal went on to consider what might have happened had the Appellant decided not to dismiss the Respondents but to hold an investigation.  The Tribunal concluded that they would have been dismissed anyway and gave the reasons for it.  All I think we need to say for the purposes of this judgment is that having regard to the reasons which the Tribunal gave for their view that the Respondents would have been dismissed in any event it is arguable that they ought to have specifically addressed their minds to the question of whether or not in those circumstances any investigation would have been futile and inappropriate.  Mr Wilson submits that they simply did not address that issue.  That is a possible construction of the Tribunal’s reasons although looking at it as a whole it is possible to discern a different interpretation.  Having regard to the nature of the case and the submission which had been made to us we think that the matter ought to proceed to a full hearing for these issues to be resolved.

5.	An additional ground of appeal is that in the compensatory award the Tribunal awarded not only compensation representing loss of wages during the period which they thought the Respondents would still be employed had there been an investigatory process but also an additional sum for wages in lieu of notice.  There had been no specific claim in contract and it is clearly arguable that the Tribunal were guilty of double counting.  We order that the matter should proceed to a hearing in respect of that as well.