Nursery staff win unfair dismissal case

A NURSERY worker who feared losing her home while on maternity leave is one of six workers to have been unfairly dismissed, a tribunal has found.

The tribunal heard that Appletree Day Nursery, in Cardiff Bay , closed on October 28, 2016 and 12 staff members were made redundant with two weeks’ notice.

Owners Peter and Victoria Buttle, who have three other nurseries under the same name in Llanishen, Swansea , and Magor, opened up another nursery in Cardiff’s Ocean Way in 2017, but staff at the original Cardiff Bay nursery in Dunleavy Drive were not offered new roles.

At a Wales Employment Tribunals held yesterday in Cardiff, Appletree Day Nursery was found to have unfairly dismissed six employees.

Of those, two employees were also found to have been victimised. Those were Laura Edwards and a woman who did not wish to be named (Employee A), who were both on maternity leave when the redundancies were made and saw delays in receiving maternity pay.

Employee A was also found to have suffered discrimination after her employers dismissed her while failing to notify her of the issues surrounding the closure of the nursery.

The other claimants in the case were Joanna Mabey, Chantal Lawday, Chidi Jarvis and Sonia Clarke.

A judgement document, which summarised the tribunal panel’s decision in favour of the claimants, said: “For both claimants (Ms Edwards and Employee A) late payments occurred in six months; the largest delay in making payment came after the Employment Tribunal claims were presented, with the longest period of delay being 10 days (payment due on March 31 not being made until April 10, 2017).

“We accept (Employee A’s) evidence of her witness statement, that when she inquired about the lateness of payments that Mr Buttle said words to the effect ‘you expect me to pay you when you are bringing a tribunal claim?’ When asked if he made this comment, Mr Buttle responded ‘not in those words.’ We accept (Employee A’s) evidence as persuasive and prefer her account.

“We conclude therefore that both Ms Edwards and (Employee A) have experienced detriment by late payment of Statutory Maternity Pay (SMP), which had a significant impact particularly with regard to (Employee A) as she described potentially losing her home because of late payments with her rent. We conclude that the reason for making late payments is illustrated by the comment that we accept Mr Buttle made and we uphold the complaints of victimisation.”

The judgement document said that Appletree Cardiff Bay Ltd were in debt to HMRC and had been served with a winding up petition following a hearing in the High Court in August 2016.

The panel said that Appletree Day Nursery did not consider an “appropriate pool for selection” by making all staff members in Cardiff Bay redundant with “flexibility” of staff working in different locations.

The panel also found that Appletree Day Nursery did not document any offer of alternative employment in respect of the claimants.

The panel added: “Overall, we comment that staff employed by the Respondent were expected to show flexibility and could be deployed across sites to cover gaps in sickness and holiday pay. Pooling was not considered and this affects the fairness of selection for redundancy.

“Consultation was inadequate and offered no genuine opportunity for discussion of ways to avoid redundancy as pooling was not considered.

“Opportunities for alternative work should have been explored in all associated companies and they were not. We conclude that the dismissals were unfair.”

An application to add Mr and Mrs Buttle to the list of respondents due to a disclosure by their representatives that the company Appletree Day Nursery was facing insolvency was dismissed.

A hearing has been reserved for a later date for the claimants’ damages to be determined.

Speaking after the hearing, claimant Sonia Clarke, who presented the case during the tribunal, said: “We had given six long years of service and we should have been treated with the respect we deserved.

“We helped to build up the business for them and they wouldn’t have had the reputation they had or been able to open the other nurseries.

“Mr Buttle can’t treat people like this, he showed a lack of respect. I am delighted about the judgement because it means he won’t be able to treat any more staff the way he treated us.”

Mark Gray, the claimants’ representative, said: “This case shows that employees are protected when businesses are closed down in this way, particularly new mothers.”