In a landmark case heard in London Central, a nanny has been awarded £38,000 compensation for being dismissed after raising concerns for Respondent’s partner failing to self-isolate upon their return from France.
Lucy Richards, trainee solicitor in our Employment & HR Services reviews the case and provides her thoughts.
Background
• Ms. O’Harris had 26 years’ experience as a nanny and was working for the Respondent and her family until she was dismissed (without warning but with notice pay).
• Ms O’Harris’ continuous employment started on the 29 May 2018.
• Ms O’Harris claimed automatic unfair dismissal under s.100 (1) (c) Employment Rights Act (ERA) 1996 and unfair dismissal under s.98 ERA 1996.
Ms. O’Harris claimed that she had been unfairly dismissed by the Respondent on 10 June 2020, for raising issues about the failure of the Respondent’s partner to follow what she understood to be government guidelines, requiring a person who had been to France to quarantine for 14 days on returning to the UK.
The Respondent argued that Ms. O’Harris did not have sufficient service to claim ordinary dismissal, and that the reason for the dismissal was nothing to do with the Claimant’s discussion about quarantine. The Respondent argued that Ms. O’Harris was dismissed because:
• She did not like the Respondent’s husband being at home observing her.
• Her relationship with the children was not as positive as it should have been.
• She was being inflexible in discharging her duties.
The Respondent admitted that they had not followed a procedure when dismissing Ms. O’Harris, as it would have been impractical in a private family environment.
Employment Tribunal’s Decision
During the Tribunal hearing, it transpired that the Respondent’s partner refused to self-isolate when returning from France and gave no substantive reasons beyond stating he was protected by antibodies.
Ms O’Harris was concerned as to her own health (suffers with asthma) and that of her own partner (diabetes) and her mother who she cared for. She was genuinely concerned about her and her family’s health and safety as a consequence of the actions of the Respondent and her partner.
After raising the concerns under s.100 (1) (c) ERA 1996, the next day Ms O’Harris was dismissed. The reasons at the time were limited to saying the Respondent’s partner would look after the children which was not the real reason as it transpired that the Respondent hired a replacement nanny.
There was no fair dismissal, no conduct or capability issues were raised, formally or informally and no disciplinary hearing took place. Employment Jude Russell held that there was a complete absence of process, but one cannot expect too much when the employer is effectively a family.
However, EJ Russell held that the complete lack of any procedure and the timing of the dismissal and false reason simply confirms the real reason for the dismissal as well as the unfairness of it. The Claimant was dismissed because of the health and safety complaint she made, a concern she was entitled to have.
EJ Russell awarded Ms O’Harris £38,292.65 compensation.
Important to note that her compensation included a 25% uplift for failure of the Respondent to comply with the ACAS code.
This case is a prime example of how not to dismiss an employee who has raised valid health and safety concerns. It also solidifies the importance of Employers’, no matter their size, needing to follow the ACAS Code and not punish their staff when raising a health and safety concern.
It is expected that claims such as these, especially s.100 ERA 1996 claims will increase as a result of the Covid-19 pandemic.
If you have or require advice with regard to staff raising health and safety concerns or how to safely dismiss staff, please do not hesitate to contact the team.
