Miss Y McKay v The Fruit Tree Day Nursery Ltd: 2307653/2023
JUDGMENT
[1]The dismissal was in breach of contract.[2]The claimant is awarded compensation in the sum of £3,988.[3]The claim in respect of holiday pay is dismissed on withdrawal.REASONS
[1]These written reasons are provided at the request of the respondent following oral reasons given earlier today.[2]Miss McKay worked for the company as a Montessori Teacher. She started on 16 January 2023 and was dismissed a little over 6 months later.[3]She has brought claims of breach of contract and in relation to notice pay, although she accepted at this hearing that no holiday pay was due and so that claim is dismissed. Page 1 of 6 Procedure and evidence[4]I heard evidence from Miss McKay, and on behalf of the company from Mr David Wade, the Director, who dismissed her and from Ms Annette Lawrence, the Nursery Manager.[5]Documents were provided in various forms and batches. There is a main bundle of 55 pages, together with some further documents attached to the witness statement of Mr Wade. There is also a record of a probationary review meeting held on 20 June 2023 between Miss McKay and Ms Lawrence. Having considered this evidence and the submissions on each side, I make the following findings of fact, which are limited to those needed to support my conclusions,Findings of Fact
[6]Before she began her employment, Miss McKay wanted a term-time only contract as she had her own children to take care of. That was agreed, as is shown by a WhatsApp message from Mr Wade on 10 January 2023 [1] “8-2 is fine and term-time only is fine”[7]She says that her level of pay, at £12.50, reflected this arrangement and I have no reason to doubt that. However, the contract of employment [3] made no mention of term-time hours. She raised this with Mr Wade and he accepted that he then agreed that he would honour it. Ms Lawrence also agreed that Miss McKay was on a term-time only contract from the beginning. That meant that she would be paid as normal during the school holidays. Her pay statements confirm this. They show, e.g. that Miss McKay was paid her normal pay in full each month, from in February onwards, regardless of half-terms and Easter holidays.[8]In that respect, her written contract of employment did not reflect the actual agreement between the parties but there was this agreed variation by the parties. In other respects, such as the notice arrangements and probation period it is not disputed.[9]The section on the probation period [5] states that it would run for six months and that she would be subject to one week’s notice in that period. If she chose to resign she would have to give three months’ notice. It goes on to say that in the first three months, her performance against various standards would be ‘strictly monitored’ at the one month, two month and three month stages, although in fact Ms Lawrence accepted that it was not, in fact, not operated in that way. There were no meetings, just informal monitoring and discussion.[10]In February there was an incident in the nursery. It involved a child of 2, approaching his 3rd birthday. The child was making a paper aeroplane. Miss Mackay was trying to engage the whole group of 27 children in an activity so she asked him to stop. He persisted and she told him that she would have to take the Page 2 of 6 aeroplane off him if he carried on. He did carry on ignoring her and she did take it off him and put it in the bin. She accepts that this was not her best day at work. A colleague then took the plane out of the bin and began to make a new paper plane for the child.[11]She spoke to the colleague afterwards saying, “So I decided to punish him and you chose to reward him” Another colleague then said words to the effect, “ We do not use the word punish here”. Afterwards, Miss McKay felt angry and felt she had been let down by her colleagues. She felt that she had needed to be consistent and to follow through on what she had said to the child whereas her colleagues had undermined her.[12]However, that is where it was left. Ms Lawrence was aware of the facts but no action taken, even informally, to address it. In fact, no performance matters were ever raised with her.[13]The only record we have of any such discussion is the meeting on 20 June 2023. This was at just over the 5 month stage. Ms Lawrence explained that she brought it forward because Miss McKay would soon be away in the school summer holidays.[14]It is headed “Probation Meeting”. The first question is “What have you done well over the last 6 months?" That is repeated later: “6) What have you found challenging in the last 6 months? … 8) What are your goals for the next 6 months?[15]Then there is a summary: “Yvette has started with a very positive attitude to working at The Fruit Tree. Yvette has settled in well with the management team and needs to work on some areas with the staff in her room. Yvette is well organised and will prepare her activities (for the children to engage). Yvette is very energetic and willing to help and support others. The children have engaged with her teaching style.”[16]There are in fact no criticisms of her performance. It appears clear from all this that this document records the six month probationary review meeting and that there were no concerns. It records her target for the next six months which included waiting for confirmation of university acceptance. (She was proposing to undertake a course on early years teaching).[17]There was no follow up letter to confirm that she had passed her probation period, but there is no such requirement in the contract. Mr Wade gave evidence that she had not passed her probation period and that it is the industry standard to wait for up to a further month before making a decision on whether the probation had been successful. Page 3 of 6[18]I do not accept that. No supporting evidence has been provided for that view, for example in respect of other members of staff, and it is at odds with the contract, which provides for a six month probation period, not for seven months. The record of the probationary review meeting itself is perfectly clear and there is nothing in it to suggest that any further seal of approval was required. Hence I am satisfied that Miss McKay had completed her probationary period.[19]So the position at the end of June was that the summer holidays were approaching, which meant that she would shortly be off work. It was also not yet certain that she would be starting university course or what that would mean for her employment. Did she have to give three months notice? What would happen if she gave notice and was unable to arrange student finance? Would she be able to carry on working part time at the nursery?[20]There was clearly some discussion between her and Mr Wade about these points in July. On 18 July Ms Lawrence sent her a Whatsapp message to ask if she was definitely going to accept an offer from the university. She replied that she had spoken to Mr Wade about it and they had agreed that she could go “without the prospect of being penalised i.e. three months notice.” Quite what that meant is unclear. Her view was that she could go at the start of the summer holidays and get paid for the rest of the summer holidays, without the need to give 3 months notice.[21]She then wrote to Mr Wade about it on 19 July [17] asking for clarification. The key point was whether he was expecting her to hand in her notice and leave on 31 July, or whether it was 31 August as she had thought. She said that if she was not going to be paid for the full month she would have to reconsider the whole thing.[22]He responded that day [18] to say that they needed to talk this through to avoid any further confusion and suggested that they meet up on Friday morning, 21 July.[23]To judge from the correspondence they must have had a further discussion that day. She sent him an agitated reply shortly afterwards, quoting back at him what (she said) he had previously agreed and adding “David with the greatest respect and concern, I will say to you, you need to invest in a set of memory assisting vitamins. I would also like to add, if you think you are overpaying me, please reread that email with the attachments then come and tell me by how much you are overpaying me.”[24]It is clear from this that tempers were getting frayed. Miss McKay felt that he might be trying to avoid paying her for August. It is not clear where the reference to overpayment has come from; it may be that Mr Wade was under the impression that she had taken too much holiday since she had been paid throughout. If so, Page 4 of 6 that was a misunderstanding of his part about the agreement they had reached that this was a term time contract.[25]Against that background they met on 21 July 2023. Ms Lawrence was also at the meeting. A good deal of evidence was heard at this hearing about what exactly was said but it does not seem necessary to go into that in fine detail. It was very acrimonious and the outcome was that Miss McKay was dismissed.[26]It is clear from the outcome letter that the main reason relied on for dismissal was the incident in February with the child and the paper aeroplane. Mr Wade accepted in his evidence that he was aware of this incident already and he chose to raise it at the meeting as an example of unacceptable conduct on her part. He raised it three times and each time she defended her actions. This may well have added to the temperature of the meeting. His explanation for raising it was that this was part of the probationary review process although there was number mention of that beforehand.[27]For the reasons already given I do not accept that this was part of the probationary review process, and hence I did not accept that this was the real or underlying reason for the dismissal. But even if I’m wrong about that, and Mr Wade decided to dismiss Miss McKay because of what he discovered about this incident, or whether it was because he was annoyed about the reference to vitamins, or the way in which Miss McKay spoke to him, or whether he was annoyed about the uncertainty over Miss Mackay’s university course or just the fact that it had become clear to him that she was entitled to be paid during the school holidays, he was dismissing her outside the probationary and he was giving her notice. The only remaining question is how much notice she was entitled to. Was it the one week that applied during the probation period or what was it the normal three months notice due under the contract? Clearly, given my view that she had passed her probation period, she was entitled to the full amount.[28]I note that the outcome letter, which followed on 24 July, is in hostile terms. It describes the incident in February and refers to Miss McKay’s ‘despicable behaviour’. It also states that he only found out about this incident when she told him about it in the meeting, which is at odds with his evidence today that he was already aware of it.[29]There was some suggestion that this hearing that Miss McKay was in fact guilty of gross misconduct over this incident or over the way that she spoke to Mr Wade and so was not entitled to any notice at all. That however is not what is stated in the outcome letter and is not part of the respondent’s pleaded case. Again, she was given notice. The only question is how much she was entitled to.[30]That is readily calculated. Her net monthly pay was £1,440, ignoring pence. Three months’ net pay therefore amounts to £4,320. She did receive one week’s Page 5 of 6 pay, and applying the same rate that should have been a net figure of £332. Giving credit for that amount leaves a total due of £3.988.