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Nursery worker wins unfair dismissal claim after being accused of being drunk at work and discussing sex life in front of children

In Millie Davey v Swans Day Nurseries Ltd the claimant was employed by the respondent, latterly as a Senior Nursery Practitioner. The claimant appears to have been a valued member of the nursery staff.

In Millie Davey v Swans Day Nurseries Ltd the claimant was employed by the respondent, latterly as a Senior Nursery Practitioner. The claimant appears to have been a valued member of the nursery staff.

On 20 September 2021, the claimant gave notice to terminate her employment. In the event she was summarily dismissed before she had completed her notice period. That dismissal took place on 15 October 2021. The circumstances of and reasons for that dismissal are hotly disputed. In particular, what was said to the claimant at a meeting on that date and who was present are disputed.

Mr Luthra, a Director of the respondent, relied on two written statements both said to be from Ms Sumera, the Nursery Manager and signed by her and by another employee, Ms Ami. One of Ms Sumera’s statements contains an account written in the first person said to be from a parent raising concerns about the accuracy of information provided to that parent by the claimant regarding the feeding of a child.

The Tribunal was told that the parent had made the complaint on the respondent’s app and that the relevant entries had been deleted some time ago. The claimant was not told that there had been any parental complaints about her, and she had not seen the complaints on the app to which the respondent referred.

On 15 October 2021 the claimant was asked to meet with Mr Luthra in his office. The alleged note of the meeting suggests that Mr Luthra began by referring to the claimant being under the influence of alcohol. Indeed, Ms Sumera’s statements suggests that the claimant smelt strongly of alcohol, had slurred speech and had appeared confused earlier in the day.

The note of the meeting on 15 October suggests that there had been multiple reports regarding the claimant making false claims on the app regarding her feeding of children and that she herself had advised staff to make false claims to Ofsted and had made inappropriate comments to other members of staff in front of the children.

At 6.23 that evening Mr Luthra sent an email to the claimant. It terminated her employment with immediate effect for gross misconduct. The claimant’s account of the meeting of 15 October is very different from that given by Mr Luthra. She says that there was no mention of alcohol, or of complaints by parents, or of her discussing non-nursery related and inappropriate matters in front of children. She says that Mr Luthra referred only to his having three written statements from staff saying that she had said that she was going to report the nursery (apparently to Ofsted). In the meeting she denied that she had said any such thing.

The Tribunal preferred the claimant’s account of the meeting to that of Mr Luthra and stated that her account was clear and consistent. The Tribunal further stated that allegation with regard to alcohol was later fabricated by the respondent.

The claimant was awarded the sum of £5,325.75.

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