This advice is prepared for Elodie in relation to her summary dismissal as an employee of Jumping Jack’s Day Nursery (the “Nursery”). At the outset, we would ask to see Elodie’s contract of employment and other written terms such as a staff handbook, which govern her relationship with the Nursery. This advice will consider statutory measures and case law together with the ACAS Code of Practice.
In advising Elodie there is a need to firstly confirm her eligibility to bring an unfair dismissal claim and any other action. Pursuant to s. 94 Employment Rights Act (“ERA”) 1996, all eligible employees have a right not to be unfairly dismissed. Elodie has been continuously employed for more ...view middle of the document...
The Nursery will need to convince a tribunal that the primary reason for Elodie’s dismissal falls within one of the six permitted reasons under s. 98(1) and (2) ERA 1996. The burden of proof in explaining the procedure for the dismissal will be on the Nursery and they will argue that their decision relates to Elodie’s ‘conduct’ in shouting and pushing Sam. The Nursery will have to show evidence of their genuine belief in respect of Elodie’s gross misconduct. In addition to the episode involving Sam, the Nursery has averred in their grounds for dismissal that Elodie’s “manner” was an aggravating factor.
Although the burden of proof regarding the fairness of the dismissal is neutral, the tribunal will expect the Nursery to show and substantiate that they acted in the manner of a ‘reasonable’ employer under those circumstances. The test for reasonableness is detailed in s. 98(4) ERA 1996 and a tribunal will seek to deduce the facts so as to scrutinise the grounds of dismissal.
The Nursery is required to discipline Elodie in accordance with the ACAS Code (as a minimum). A failure to follow the Code will not render a dismissal automatically unfair.
The Nursery is required to establish the facts without unreasonable delay. It is averred that the Nursery have failed to “keep an open mind and look for evidence which supports the employee’s case as well as evidence against”. The Nursery should have adopted a more rational approach as their need to “have the matter sorted out quickly” has undoubtedly compromised their investigation.
The Nursery was aware that Elodie sought to have her trade union representative present at the disciplinary hearing contrary to s. 10 ERA 1999. The refusal of the Nursery to rearrange the hearing to a time when the representative was able to attend may be deemed detrimental in the circumstances. Therefore, it is averred that Elodie “has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer”. Moreover, from the facts, the Nursery failed make “clear to the employee that dismissal is a possibility” as an outcome of the hearing. Not only have the Nursery isolated Elodie in having her attend the hearing alone, but they have failed to explain that she has a right of appeal. These fundamental terms are described as the “core principals of reasonable behaviour” by ACAS which have been neglected by the Nursery.
At the disciplinary hearing, Elodie was informed that staff had complained about her “aggressive and confrontational manner”. It should be queried with the Nursery why Elodie was not informed of these complaints and disciplined accordingly. During Elodie’s length of service of 4 years, she has not been made aware, nor has she been warned, of these complaints.
The reasonableness of the Nursery’s belief (and actions) in dismissing Elodie will be examined in accordance with the three-part test set out in British Home Stores Ltd v...