Ms M Maczynska and Ms M Zaman v Kidzstop Day Nursery Ltd: 2407302/2023 and Others

EMPLOYMENT TRIBUNALS

Case No 2407302/2023, 2409001/2023, 2407303/2023, 2407964/2023

Between

Ms M Maczynska and Ms M ZamanClaimant

Kidzstop Day Nursery LtdRespondent

Before

Tribunal Judge Abigail Holt

In person for claimant

Ms Morgan (instructed by Counsel) for respondent

Date 21 February 2025

JUDGMENT

[1]The Tribunal unanimously finds that the Claimants were unfairly dismissed and so the claims of unfair dismissal pursuant to s94 of the Employment Rights Act 1996 are successful.

[2]We unanimously find that the Claimants were not subject to less favourable treatment in the form of direct race discrimination as claimed and in breach of section 13 of the Equality Act 2010, and so the claims for direct race discrimination are dismissed.

[3]The remedy hearing is listed for one full day on 14 April 2025 and will be heard by Judge Holt and the two non-legal members at Manchester Employment Tribunal, Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA. The hearing will start at 10.00am. You must arrive by 9.30am.

[4]The following paragraphs are case management orders for the remedy hearing to determine compensation. The parties are reminded of the need to try to use their best endeavours to try to compromise the outstanding issues in the case. Decision and Reasons Case Numbers: 2407302/2023 2409001/2023 2407303/2023 2407964/2023

[5]By 16:00 on 7 March 2025 the Claimants are to send to the Respondent and to the Tribunal up-to-date schedules of loss and any updating witness statements or any further documentary evidence supporting their financial claims.

[6]By 16:00 on 21 March 2025 the Respondent is to serve counter-schedules responding to the Claimants’ schedules of loss.

[7]Sometimes hearings start late, are moved to a different address or are cancelled at short notice. You will be told if this happens.

[8]If a compromise is reached and the case settles then the parties must inform the Tribunal immediately. Tribunal Judge Holt 21 February 2025

REASONS

[1]These are the Written Reasons for the Judgment given orally, with reasons, at the conclusion of the three-day hearing on 21 February 2025; our oral decision having been followed with a short, written Judgment prepared by me on 21 February 2025 and which included Directions for the remedies hearing scheduled for 14 April 2025. The short Judgment and Directions were sent by the Tribunal staff to the parties on 17 March 2025.

[2]The claimants both worked together at the respondent’s children’s nursery. They brought claims for(i) unfair dismissal pursuant to Section 94 of the Employment Rights Act 1996 and

(ii) claims that they were subject to less favourable treatment in the form of direct race discrimination in breach of Section 13 of the Equality Act 2010. The claimants received text messages dated 2 July 2023 from the respondent’s owner/director Ms Amanda Greenwood telling them that they were dismissed. The first day of dismissal was said to be 3 July 2023.

[3]The claimants were employed by the respondent-business, a day nursery for children, as the Deputy Manager (Ms Zaman – second claimant) and the Assistant Deputy Manager (Ms Maczynska first claimant). The nursery was/is called “Kidzstop”. The claimants are both Polish nationals. The claims are about the claimants’ selection for redundancy and whether that was race discrimination on the grounds of their Polish nationality and/or unfair dismissal. The Procedural background

[4]In summary, early conciliation started in July and August 2023 and ended in July and August 2023. The claim forms were presented in July and August 2023. The respondent has not taken any points with time limits.

[5]Initially, there were two other Polish nationals employed by the respondent at the nursery who were made redundant at the same time as the first and second claimants and who also made claims. The Tribunal seems to have linked all four cases. Eventually, the claimants’ cases were listed for a case management hearing on 27 October 2023 before Judge Ainscough who prepared Case Management Orders dated 10 November 2023. The case management document was sent to the parties on 14 November 2023. On 27 October 2023 Judge Ainscough had helpfully drafted a list of issues as part of her Case Management Order and included the Orders in the document that went out on 10 November 2023. Her orders structured our consideration of the case and which I set out below [see §8].

[6]It should also be noted that, originally, there were additional claims made by the claimants herein but that, by the time of the hearing in February 2025, all outstanding unpaid wages, holiday pay and redundancy had been paid. We understood that the claims against the two other original co-worker claimants had also been settled. We were given to understand that the outstanding monies had been paid by the respondent and/or the Government’s Insolvency Service by mid-September 2023. (In fact, it was part of the evidence of Ms Helena Mofflin (the respondent’s bookkeeper accountant), that the respondent has, or had, an arrangement to pay back what is effectively a loan to the Insolvency Service). The Issues

[7]The respondent denied that the claimants were unfairly selected for redundancy. The respondent also denied race discrimination. In response the respondent asserts that, because of a reorganisation, the redundancies were forced upon the business by the precarious financial state of the business, and which only came to light some months after Ms Greenwood had taken over the nursery and amalgamated it with her existing nursery business.

[8]As mentioned above, a list of issues was provided by Employment Judge Ainscough when she provided a list of Case Management Orders at the hearing on 27 October 2023 and which has structured our discussions and decision-making process. [100(f) bundle]. The List of Issues that we considered was: Unfair dismissal1.1 The claimants were dismissed on 2 July 2023.

1.2 What was the reason or principal reason for dismissal?

1.3 Was it a potentially fair reason?

1.4 Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimants?

1.5 The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

1.6 The respondent says the reason was redundancy.

1.7 If the reason was redundancy, did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimants? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.7.1 The respondent adequately warned and consulted the claimants;

1.7.2 The respondent adopted a reasonable selection decision, including its approach to a selection pool;

1.7.3 The respondent took reasonable steps to find the claimants suitable alternative employment;

1.7.4 Dismissal was within the range of reasonable responses. Direct race discrimination (Equality Act 2010 section 13)

4.1 The claimants are Polish.

4.2 Did the respondent do the following things:4.2.1 Dismiss the claimants on 2 July 2023; and

4.2.2 Fail to pay the claimants’ wages on 31 July 2023.

4.3 Was that less favourable treatment? The Tribunal will decide whether the claimants were treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants’. If there was nobody in the same circumstances as the claimants, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimants say they were treated worse than:

(1) Roxanne Hill; and

(2) Amy (Room Leader) In the alternative the claimants rely on a hypothetical comparator which would be as follows: (1) For the first claimant, an Assistant Deputy Manager/Administrative Manager who was English; and (2) For the second claimant, a Deputy Manager who was English.

4.4 If so, was it because of race? Listing

[9]We heard this case as a panel over 3 days 19-21 February 2025 inclusive. On the final day of the hearing the panel discussed the case, deliberated and reached a decision which was then delivered to the parties on the afternoon of 21 February on an extempore basis, along with reasons for the decision.

[10]We heard oral evidence from the two claimants and their three witnesses: Ms Ariadna Kowalczykiewicz, Ms Maria Klisiewicz and Ms Joana Milan-Kuziora. We heard from the owner of the respondent’s business, Ms Greenwood and her accountantbook-keeper Ms Mofflin. All of the witnesses answered cross-examination questions as well as questions from the panel of judges.

[11]We have had regard to an agreed bundle of documents 252 pages long. Numbers in square brackets [page] are the pages in the bundle.

[12]We were assisted by skeleton arguments from both sides, as well as additional oral submissions. It should be noted that here I do not provide consideration of every detail of evidence or submission, just the most salient matters. Just because something is not mentioned here does not mean that it has not been considered. Evidence which was not provided

[13]Before considering the evidence which was provided to the Tribunal, I note that each party decides the evidence that they wish to rely on. The Tribunal does not do its own research or make any independent investigations nor tells the parties what type of evidence they have to provide. We noted, however, that Judge Ainscough made the standard Order that the parties must send to each other copies of all documents relevant to the issues listed in the case summery [§12-13 Case Management Order]. I record that the panel did not see any documents relating to the claimed precarious financial situation of the Respondent-business. Relevant documents could have included: i. The financial information relating to the “Love Our Child” nursery business that Ms Greenwood purchased and combined with her business, thereby taking on the “Love Our Child” staff, which included the claimants. (We noted that all 6 staff from Ms Greenwood’s business were described as white English, whereas the staff from “Love Our Child” included staff with Polish and Asian backgrounds, as well as white British). ii. Financial information such as profit and loss accounts and documentation which might have thrown light on the contention that the respondent business was financially precarious in the spring and summer of 2023. iii. Applications for a bank loan and appeal to the bank when the loan application was unsuccessful. The potential relevance is that Ms Greenwood said that she applied for a further bank loan to get her through spring/summer 2023 but the loan was declined. iv. An application to the Insolvency Service for support and assistance v. The OFSTED rules setting out the ratios of staff (at various levels of qualification) to children which pertained in 2023. vi. A list of all the staff employed by the respondent at the “Kidzstop” nursery, their qualifications and how many children they could supervise at any one time in accordance with the OFSTED rules. vii. The number of children in the nursery in the spring and summer of 2023 viii. How the rotas were organised in the spring and summer 2023 insofar as it demonstrated which staff were doing what and supervising how many children each day. There was oral evidence that this was written on a white board in each of the downstairs play/class rooms with the teacher/supervising to child ratio being carefully calculated every day. There was no evidence of these ratios, nor copies of the information allegedly written on the whiteboards. ix. It was noted that the respondent did not call potential witnesses Roxanne Hill or Amy Fitzgerald.

[14]It is emphasised that the parties choose to run their cases as they see fit, but I simply flag up (as we did at the hearing) that there was a great deal of oral evidence and submissions from the respondent which was not backed up with other evidence which could potentially have corroborated her claims. Relevant Legal Principles Unfair Dismissal

[15]The unfair dismissal claim was brought under Part X of the Employment Rights Act 1996.

[16]Section 94 gives employees the portal right not to be unfairly dismissed by their employer.

[17]A primary provision is section 98 which, so far as relevant, provides as follows: “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –(a) the reason (or, if more than one, the principal reason) for the dismissal and

(b) that it is either a reason falling within sub-section (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this sub-section if it … is that the employee was redundant … (3) … (4) Where the employer has fulfilled the requirements of sub-section (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonable or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case”.

[18]The definition of redundancy for the purposes of section 98(2) is found in section 139 of the Employment Rights Act 1996 and so far as material it reads as follows: “(1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to –(a) …

(b) the fact that the requirements of that business –

(c) for employees to carry out work of a particular kind … have ceased or diminished or are expected to cease or diminish”.

[19]The proper application of the general test of fairness in section 98(4) has been considered by the Appeal Tribunal and higher courts on many occasions. The Employment Tribunal must not substitute its own decision for that of the employer: the question is rather whether the employer’s conduct fell within the “band of reasonable responses”: Iceland Frozen Foods Limited v Jones

[1982] IRLR 439

(EAT) as approved by the Court of Appeal in Post Office v Foley; HSBC Bank PLC v Madden

[2000] IRLR 827

[20]In cases where the respondent has shown that the dismissal was a redundancy dismissal, guidance was given by the Employment Appeal Tribunal in Williams & Others v Compair Maxam Limited

[1982] IRLR 83

. In general terms, employers acting reasonably will seek to act by giving as much warning as possible of impending redundancies to employees so they can take early steps to inform themselves of the relevant facts, consider positive alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere. The employer will consult about the best means by which the desired management result can be achieved fairly, and the employer will seek to see whether, instead of dismissing an employee, he could offer him alternative employment. A reasonable employer will depart from these principles only where there is good reason to do so.

[21]The importance of consultation is evident from the decision of the House of Lords in Polkey v A E Dayton Services Limited

[1987] IRLR 503

. The definition of consultation which has been applied in employment cases (see, for example, John Brown Engineering Limited v Brown & Others

[1997] IRLR 90

) is taken from the Judgment of Glidewell LJ in R v British Coal Corporation and Secretary of State for Trade and Industry, ex parte Price

[1994] IRLR 72

at paragraph 24: “It is axiomatic that the process of consultation is not one in which the consultor is obliged to adopt any or all of the views expressed by the person or body with whom he is consulting. I would respectively adopt the test proposed by Hodgson J in R v Gwent County Council ex parte Bryant … when he said: Fair consultation means:(a) consultation when the proposals are still at a formative stage;

(b) adequate information on which to respond;

(d) conscientious consideration by an authority of the response to consultation”. Reason

[22]In any unfair dismissal case where it is common ground that the claimant was dismissed, the first question is the reason or principal reason for dismissal. A reason is a set of facts or beliefs in the mind of the decision maker which causes her to dismiss the claimant. Reasonableness

[23]The Tribunal then has to determine whether the respondent acted reasonably in treating the identified reason or principal reason for the dismissal as a sufficient basis for dismissing the claimants. Fairness – General

[24]In considering the issue of unfair dismissal, the Tribunal then has to decide whether the claimants can establish that the dismissal was procedurally unfair. Race Discrimination

[25]In the context of Employment Tribunal claims, race means colour, nationality, national, or ethnic origin. No particular minority group comes in for special protection. Direct discrimination is one type of prohibited conducted that applies to the protected characteristic of race which is protected by Section 9 of the Equality Act 2010. Section 13 in the Equality Act 2010 deals with direct discrimination and says: “(1) A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Direct discrimination occurs when the employer treats the employee less favourably than a comparator because of a protected characteristic.

[26]Because s13 of the Equality Act 2010 focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic, the question that naturally follows is: treated less favourably than whom? Accordingly, a claimant does not necessarily have to point to an actual person who has been treated more favourably in comparable circumstances, although such a comparison is, obviously, permissible.

[27]There is no defence or justification for direct discrimination by reason of race. The consideration in this case was in relation to an actual comparator (in this case namely Roxanne Hill and Amy Fitzgerald (Room Leader), or in the alternative the claimants relied on a hypothetical comparator;(1) For the first claimant, an Assistant Deputy Manager/Administrative Manager who was English; and

(2) for the second claimant, a Deputy Manager who was English. The point is that the claimants claimed that they were treated less favourably than their colleague was actually treated, with the particular focus on Roxanne Hill.

[28]The claimant has the initial burden of proof as per Section 136 of the Equality Act 2010. In considering a direct discrimination case, the Tribunal needs to consider and make decisions about the primary facts and then consider the employer’s explanation. In relation to the burden of proof, section 136 says:(1) This section applies to any proceedings relating to a contravention of this Act.

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act.

(6) A reference to the court includes a reference to— (a) an employment tribunal; (b) …..

[29]We note that unfair or unreasonable treatment on its own is not enough (Glasgow City Council v Zafar

[1998] IRLR 36

, HL). In relation to the second stage of the enquiry, namely the employer’s explanation, the burden of proof shifts to the employer and the Tribunal must consider the employer’s explanation. Has the employer proved on the balance of probabilities that the treatment was not for the proscribed reason, i.e. race in this case? It should be noted that in a direct discrimination case, the employer only has to prove that the reason for the treatment was not the forbidden reason. There is no need for the employer to show that they acted fairly or reasonably.

[30]We also noted that the case of Madarassy v Nomura International plc [2007] EXCA Civ 33 says that a claimant must establish more than a difference in status and a difference in treatment before a Tribunal will be in a position where it could conclude that an act of discrimination has been committed.

[31]We also noted that motivation is not the same as motive. Parties before tribunals often confuse “motivation” with “motive” which is irrelevant. A well-meaning employer may still directly discriminate (Amnesty International v Ahmed [2009]

UKEAT/0447/08

). Discrimination may also be sub-conscious as was discussed in the case of Nagajaran [1999] HL. It should also be noted that the protected characteristic may need not be the only reason for the less favourable treatment. Provided that the decision in question was significantly influenced by the protected characteristic, then the treatment will be found to be because of that characteristic. Relevant Findings of Fact

[32]Clearly, our consideration focussed on the claimants’ redundancies and the reasons for the redundancies. The respondent’s case throughout was that matters unfolded the way that they did due to a genuine redundancy situation. The claimants argued that the dismissals were unfair and the decisions to dismiss made on the basis of race or their Polish nationality.

[33]We find that the claimants were dismissed on 2 July 2023. (This was uncontroversial and as recorded by Judge Ainscough). The background is that the claimants had been sent a letter dated 16 May 2023 [131-4] which started “I am writing to invite you to a consultation meeting on 22 May 2023 at 10am in relation to Redundancy with Kidzstop”. I will return to this.

[34]The basic, largely uncontroversial background chronology is that: in 2013 the Amanda Greenwood, the respondent’s owner and managing director, was running a small nursery business of her own with five other staff. In September 2015 the second claimant commenced employment with “Love Our Child” nursery. In February 2016 the first claimant commenced employment with “Love Our Child” nursery. In September 2022 Amanda Greenwood purchased “Love Our Child” nursery and in September 2022 both claimants became employed by the respondent by virtue or the TUPE provisions. In November 2022 the respondent’s accountant advised that the business not making enough money to meet the nursery costs. In December 2022 Ms Greenwood sought additional funding in the form of personal loan and overdraft. By January 2023 Ms Greenwood realised that the business operating figures at the time of purchase were inaccurate. On 1 February 2023 the second claimant was promoted to deputy manager. In March/April 2023, following discussions with her accountant, Ms Greenwood made a decision for staff redundancies in order to keep nursery afloat. In March 2023 Roxanne Hill returned from maternity leave earlier than expected. On 16 May 2023 the claimants received a letter inviting them to a redundancy consultation meeting. On 22 May 2023 each claimant had a redundancy consultation meeting followed by letter from the respondent. In June 2023 Ms Greenwood had grave concerns regarding her ability to pay staff wages for the next few months. At the end of June 2023, the claimants were paid their wages for June 2023. However, on Sunday 2 July 2023 both claimants received a text message dismissing them. There is a redundancy letter to first claimant dated 3 July 2023. On 16 July 2023 the claimants saw a Facebook post saying that the nursery was undergoing improvements. On 21 July 2023 there was another Facebook post about end of term staff party but which the claimants were not invited to. 28 July 2023 was the end of the claimants’ redundancy period. The claimants’ case

[35]The business transfer document for the first claimant (DOB 18.09.83) commenced is dated 15 September 2022 according to her “principal statement of terms and conditions of service” [127]. The second claimant (DOB 01.10.81) commenced her employment on 1 September 2015, the bundle does not contain her TUPE transfer document, but she was promoted to deputy manager on 1 February 2023 [111].

[36]Amanda Greenwood was the managing director and owner of the respondent’s business which she purchased in September 2022. In her witness statement she explained that she had been working in childcare for over 10 years and by 2013 was running a small nursery business of her own with 5 additional members of staff. In 2021 she was given the opportunity to take over as manager of a nursery in Moston, at which time she met Ms Roxanne Hill who managed her nursery whilst she ran the Moston nursery. The respondent explains that she was interested in purchasing her own nursery space and was pleased to purchase the “Love Our Child” based in Ashton-Under-Lyne which she purchased in September 2022, merging her smaller nursery of 6 employees with the “Love Our Child” nursery. She renamed the amalgamated nursery “Kidzstop”. Some of her existing staff, including Roxanne Hill, moved to the new business with her. At the time of purchasing the business there were around 80 children at the nursery with 22 employees from a mixture of English, Polish and Asian nationalities. Of the 22 members of staff, 9 were Polish. Some of the “Love Our Child” nursery staff members left before the amalgamation. In any event, the claimants became the respondent’s employees.

[37]The first claimant has a master’s degree in Education and was awarded qualified teacher status by the Department of Education. The second claimant also has impressive qualifications as a nursery practitioner and is SENDCO qualified nursery teacher.

[38]In their witness statements and oral evidence, the claimants talked about the challenges that they faced when the two nurseries were combined. They described a great deal of tension when the businesses were combined. They claimed that the respondent was rude and unprofessional at times. Throughout their evidence they emphasised that Ms Greenwood’s own small nursery business was staffed entirely by white British members of staff, whereas the “Love Our Child” nursery had been diverse with members of staff from Polish and Asian backgrounds. The overall arch of the claimants’ evidence was that Ms Greenwood was a very poor director and, whilst they did not use the word, “unpredictable” this is what they described. The claimants’ evidence amounted to them saying that they had to work hard not to get frustrated and to remain professional at work. The claimants described in their witness statements, and also in oral evidence, an incident in January 2023 when the respondent had left a hamper basket full of “treats” (candles, chocolate bars etc) in the staffroom for staff to help themselves to, but a few days later Ms Greenwood wrote a message on the staff messenger platform to complain that staff members had been “greedy” and taken items from the basket. The claimants communicated this as an example of poor and confusing management on the part of Ms Greenwood.

[39]The claimants described in their witness statements and also in oral evidence issues to do with staffing levels. In general terms, the claimants asserted that they could look after more children than some of the other staff because they had superior qualifications and experience. Unfortunately, however, we were never provided with precise staff numbers nor the staff qualifications and were not given any reliable, corroborated evidence regarding how many children there were on the books of the nursery at the relevant times and whether or how the OFSTED-dictated staffing ratios were complied with. This is evidence that we would have expected to see from the respondent given that they had access to the full information whereas the claimant’s had no access to the business records and were working from memory.

[40]In the hearing there was a dispute regarding the extent to which the claimants worked downstairs in the nursery doing tasks with the children for which their qualifications were required and where their qualifications counted to the children to staff ratios (ie non-admin tasks – OFSTED rules did not apply to the administrative parts of the business). However, the thrust of the evidence was that the claimants were flexible, stepping in to help out downstairs with the children when required and doing other tasks downstairs in the nursery which were not office-based. Both claimants were clear that, in their view, Ms Greenwood seemed to lack experience in running a business of the size of the combined nurseries i.e. the new respondent business Kidzstop. There was considerable evidence that Ms Greenwood relied heavily on the claimants for advice and requiring their flexibility to allow the nursery to continue to operate until events in May 2023. The working relationships described were professional on the part of the claimants, although privately they were clearly frustrated with the way that the new nursery was working under Ms Greenwood. It should be noted that both claimants had children at the nursery.

[41]In March 2023 Roxanne Hill, who was described as Ms Greenwood’s “best friend” and second manager, came back to work from her maternity leave earlier than anticipated. On 16 May 2023 the claimants received letters to attend a meeting on 22 May 2023 in relation to the proposed redundancy. The claimants emphasised throughout that only Polish nationals were chosen for redundancy. The claimants stated that, at the time there, were only 17 employees working for the respondent and none of the others received letters. The people chosen for redundancy were the claimants and also Maria Kalisiewicz and Bogumila Blazewicz. The first claimant says that she was handed her redundancy letter. The evidence points to the second claimant and the other staff having redundancy letters placed on their desks.

[42]The claimants were firmly of the view that they were selected for redundancy because they were Polish. They also referred to the fact that there were other employees with no qualifications or who had less experience and had only just started their employment with Kidzstop but who were not selected for redundancy.

[43]In the 22 May redundancy meetings the claimants were told that the nursery finances were in trouble and that Ms Greenwood had to “let people go” to save the business. When asked, Ms Greenwood said that the claimants had been selected because her and Roxanne Hill could “take care of things” by themselves. Ms Greenwood said to the claimants that there were positions in the playrooms for minimum wages. In relation to this, the claimants’ evidence was that Ms Greenwood had also said, immediately after purporting to offer alternative work, that she “did not think that [the claimants] would be interested”.

[44]The unchallenged evidence was no evidence of identification of a pool of staff. The four people who were subsequently made redundant were the ones that were provided with the redundancy meeting letters. There was no opportunity for the claimants to make suggestions. The claimants were simply presented with a fait accompli and with them, in effect, being required to work their two months notice period which of course was reduced to one month by the time they were dismissed on 2 July 2023. Crucially, Roxanne Hill, whose role included administrative tasks, was not identified as a potential candidate for redundancy. Nor was Amy Fitzgerald. We were hampered in assessing Ms Hill’s role because she was not called as a witness.

[45]The redundancy meetings on 22 May 2023 (when no minutes were taken and no summary of what had been said was provided to the claimants) were followed by undated letters [135-138] stating that the claimants had been selected for redundancy and that “unfortunately we have not been able to identify any suitable alternative work for you”, that they had been selected for redundancy and saying that they were entitled to 8 weeks’ notice. They were told that their last day of employment would be 28 July 2023. The redundancy letters were followed by the text messages which “came out of the blue” on Sunday 2 July when the claimants were told not to go into work the following day because the respondent could not pay their wages [147 & 150]. They were dismissed on 2 July. The claimants did not go to work thereafter but the second claimant had to go to the nursery for a few more weeks as they had children attending.

[46]The claimants emphasised that on 16 July 2023 they realised that the respondent had issued a post on Facebook saying that the nursery was undergoing “improvements”. This was queried by the claimants on the basis that the nursery had no money to pay their wages and yet, apparently, the respondent was making improvements. The claimants asked themselves how improvements could be made if the respondent had no money. The claimants were also upset by another Facebook post on 21 July 2023 when Ms Greenwood organised an end of term staff party which the claimants were not invited to.

[47]In relation to the “improvements” we find that they were not to the extent suggested on Facebook. We accepted the evidence of Ms Greenwood that her husband had helped her put up some new window decorations to improve the image of the nursery from the outside and that she had also persuaded the landlord to make some improvements to the carpeting in the entrance. Very little money in fact seems to have been spent improving the visual appearance of the nursery in July 2023.

[48]The claimants’ witnesses generally corroborated the claimants’ claims. Maria Klisiewicz was the other nursey member of staff who was made redundant, and she corroborated the claimants’ evidence about how Ms Greenwood went about the redundancy and her failures to follow any, never mind a fair, procedure. She was very upset by the redundancy and claims that the experience has left her struggling with her mental health. The Claimants’ witnesses found Ms Greenwood to be rude and unprofessional on many occasions. Maria Klisiewicz was critical of the way that Ms Greenwood organised the SEND room. Joanna Milan-Kuziora said that Ms Greenwood had suggested that nursery staff look for jobs in ASDA or warehouses if they raised questions at work or the way that the nursery was being run by the staff. Ms Greenwood was a poor communicator, communicating with staff on online platforms rather than face-to-face. Ms Greenwood was “inconsistent” in her approach to management. Ms Greenwood was unpredictable in her management style, making decisions without consulting any of the staff first and so apparently not respecting their expertise. It was felt that Ms Greenwood had “favourites” and some staff members, but “favourites” did not include any non-white, non-British staff. The “favourite” members of staff appeared to be personal “friends” of Ms Greenwood. All of the claimants’ witnesses, and especially Ariadna Kowalcyzkiewicz, gave evidence that the Polish staff members were treated differently and less favourably than the white British members of staff who were more likely to be “friends” with Ms Greenwood.

[49]I note, however, that there was no evidence of the reported unpleasant behaviour and the Polish staff allegedly being treated differently on account of their race or national background being raised as a formal complaint. Nor did anyone confront Ms Greenwood about her allegedly different treatment and attitude towards the Polish staff. Clearly, the Polish staff were in a minority and all of them were very finically reliant on their employment. However, they were a significant group within the nursery, albeit that the situation is complicated by the fact that they had children at the nursery too. However, the claimants came across as intelligent, competent, welleducated and confident. It is therefore surprising that they did not raise the issue of different treatment due to race or nationality if that is what they perceived during the course of their employment.

[50]Throughout the hearing before us, the claimants emphasised the unfairness of the decision to make them redundant. They did not believe the claims regarding the nursery’s financial struggles, or at least they did not believe the full extent of the financial difficulty. They pointed to the fact that Ms Greenwood continued to pay herself in the summer of 2023, that the nursery survived in the end when more children arrived in September 2023 and that the business seemed to have stabilised relatively quickly with their outstanding monies being paid by September 2023. The claimants emphasised the lack of consultation regarding the redundancy and that the redundancy pool did not include anyone other than the four selected, who were all Polish. It was emphasised that Roxanne Hill never seemed to have been considered for the pool. They argued that this was due to favouritism and the fact that Roxanne Hill and Ms Greenwood were close friends. The redundancy process and procedure was entirely unfair, they argued. However, their firm submissions, clearly born of genuine belief, was that they were unfairly selected and dismissed because of their Polish background and were therefore discriminated against because of their race and Polish nationality. The respondent’s case

[51]In around November 2022, having traded for a few months, the respondent’s accountant, Ms Helena Mofflin advised Ms Greenwood that the business was not making enough money to meet its costs. They discussed cost-saving measures. They applied for additional funding and in December 2022 Ms Greenwood took out a personal loan and obtained an overdraft facility with her bank. Ms Greenwood had employed her husband to carry out maintenance work at the nursery, but due to the poor financial position she made him redundant in December 2022.

[52]The evidence of Ms Greenwood was that, by January 2023 it had become clear that the business operating figures that she had been provided with did not add up and the business was not generating the income expected. As a result, Ms Greenwood’s accountant identified that when the business had been purchased it contained duplication of funding payments received by Thameside Council. (Ms Greenwood explained that the nursery received three funding payments a year from the local authority. In the year relevant to the purchase of the business, the business accounts claimed to show that the nursery had received four payments in one year which was later confirmed to be an error (only three had actually been paid). The accountant also identified that the vendor of the business had received monies from a self-employment income support scheme; a matter which had not been realised when Ms Greenwood purchased the business. The upshot was that the income from the business had been overstated by a significant amount when in fact the nursery had been running at a loss. In her witness statement Ms Greenwood said “It certainly wasn’t the successful business I had been led to believe it was”.

[53]As a result of these problems, the accountant produced a revised financial forecast for the nursery business and said that, as a result of the overstatement of the income, the business was not viable going forwards and that significant intervention was needed to keep the business afloat. The claimant agreed payment holidays for the business loan with her bank, a personal loan and help with business rates payments. Ms Greenwood came to an agreement with the landlord regarding rent and rent increases.

[54]However, it became clear that further action was required to save the nursery. In early 2023, Ms Greenwood knew that the nursery would lose around 30 children in September 2023 who would be transferring from the nursery to start school. This would mean a significant reduction in income. Although she expected to get new children enrolled before September 2023, she had no idea how many new children would be likely to enrol and be on the books by the new school year in September 2023, not least because this was the first year of running the new business.

[55]Therefore, in March/April 2023 (i.e. after the second claimant had been given a pay rise), Ms Greenwood discussed further options with her accountant regarding keeping the nursery afloat and, having already obtained payment holidays and loans, it became clear to the respondent that there was no alternative but to look for staff redundancies. At the time, the staff included a cook, three administrative employees, with the remainder of the staff based downstairs in the nursery working directly with the children as nursery nurses/teachers.

[56]The evidence of Ms Greenwood was that the decision to select individuals for redundancy had to be based on the roles that the nursery could afford to lose, and this involved protecting the ratio of nursery nurses/teachers to children as required by OFSTED. Having previously lost four nursery nurses when the businesses combined, the respondent could not afford to lose any more and, if anything, needed to recruit in these roles in order to ensure that the staff/children ratios were maintained. If she did not have the correct ratio of staff to children, then this would mean either having to turn new children away or having to reduce the head count, both situations which would result in lost income for the nursery.

[57]Against this background, the claimant’s assistant manager from the previous nursery, Roxanne Hill, had been away on maternity leave, but returned in the Spring of 2023 just as Ms Greenwood was facing the financial crisis. Roxanne Hill was based downstairs with the children but also carried out administrative tasks such as peer reviews, providing training, handling complaints, resolving disputes between employees, organising promotions and marketing efforts and recruitment. Ms Hill was Ms Greenwood’s deputy and also the line manager to the claimants and other administrative staff, as well as acting manager when Ms Greenwood was absent. Her job description is at [209-210].

[58]In both her witness statement, but also in her evidence at the hearing, Ms Greenwood asserted that it became obvious to her and Ms Mofflin that the nursery could lose the cook because only 10 out of 80 children were having meals made for them by the nursery, the majority of the children brought their own food. That meant that she still had to find three other staff members who did not risk depleting the nursery numbers, and, she claimed, that meant that the only possibility was to look at the administrative staff roles. Ms Greenwood claimed that the three administrative members of staff were the obvious choices including the claimants who worked solely in the office.

[59]At this point I flag up that the respondent said that the claimants worked mainly in the office although acknowledged that they would, from time to time, provide cover in the nursery when it was required for child to staff ratios. There was a dispute about the extent to which the claimants worked downstairs with the children on a “hands on” basis, but there was no real challenge to the assertion that the main role of the claimants was administrative. The first claimant was employed as an administration manager handling all administration tasks and the second claimant was employed as a deputy manager from 1 February 2023. She was responsible for managing the nursery if Ms Greenwood and Ms Hill were absent. (The other member of staff who was identified for redundancy, Maria Klisiewicz, was employed as a SENDCO nursery nurse/teacher.) The respondent asserted that, given the size of the nursery, there was not really enough work for three administrators. The admin staff were doing tasks that Ms Greenwood had plenty of experience of doing, she thought that she could take over the administrative roles and would be able to rely on Ms Hill if extra support was needed. Ms Greenwood therefore decided to put all three members of the administration team at risk of redundancy.

[60]Ms Greenwood confirmed that, on 16 May the claimants were invited to a redundancy consultation which was held on 22 May 2023. The claimants attended individual meetings where Ms Hill was present. At those meetings Ms Greenwood says that she offered the claimants jobs “downstairs” in the nursery working with the children because she recognised that she needed nursery nurses to increase the ratio of the staff. The respondent claimed in her witness statement that the first claimant was not interested in another role as she was looking for a new job and Ms Greenwood claimed that neither claimant questioned why they had been selected for redundancy nor, she claimed, did they raise any concerns about the decision.

[61]Following the meeting on 22 May 2023, Ms Greenwood sent both claimants a letter to confirm that no suitable alternative role had been identified for them and that they were selected for redundancy [135-136, 137-138]. In the letter there was mention of redundancy entitlement and the right to appeal. The letter said that the last day at work would be 28 July 2023 and that both were entitled to 8 weeks-notice. Ms Greenwood claimed that she did not receive any appeal requests regarding the redundancies and emphasised that at no point was there any suggestion from the claimants that the redundancy was unfair or racially motivated.

[62]Unfortunately, the financial difficulties of the nursery continued and Ms Greenwood’s evidence was that, by June 2023 she was concerned about her ability to pay the staff wages for the next few months knowing that a nursery nurse was returning from maternity leave in July 2023 and that she was not due to receive any funding from Thameside Council until September 2023. In addition, some families had taken their children out of the nursery. Ms Greenwood applied for a personal loan, but it was declined and she was also declined an extension to her business overdraft. It seems that [§16] at this point Ms Greenwood acknowledged that she “panicked”. She ran through the various options with her husband and decided that the only way forwards was to bring forward the last day of employment for the four staff. All the staff had been paid for June 2023. She knew that she needed to cover the remainder of the claimants’ notice period (one month) and would be able to do so when she received the funding payment from Thameside Council in September 2023 and, she says, that “I wanted to avoid the claimants having to work in July 2023 knowing that I wouldn’t be able to pay them on time”. She says that she intended to apply to the Insolvency Service to cover the redundancy payments.

[63]It was agreed evidence that Ms Greenwood therefore sent a message to the claimants on 2 July 2023 as per text messages at [147 and 150].

[64]Ms Greenwood sent a formal letter to the first claimant dated 3 July 2023 [153]. There was no such letter provided for the second claimant in the bundle whose evidence we accepted, namely that she did not receive a formal redundancy letter. Ms Greenwood said that she did not hear anything further from the claimants until she received the Employment Tribunal claim forms, although the first claimant took her child out of the nursery. (The second claimant kept their children in the nursery until the end of term.) It seems uncontroversial that when the respondent received the funding payment from Thameside Council in September 2023 she was able to pay the claimants the outstanding monies, including the balance of notice pay and holiday pay. Statutory notice was also paid to the second claimant (in accordance with her start day in June 2015).

[65]In the written evidence and also in the oral evidence from Ms Greenwood and Ms Mofflin, the respondent was adamant that the decisions were not motivated by race and were simply brought about due to pure business decisions on the basis of the need to keep the nursery business afloat. They also described what would be summarised as cordial relationships between Ms Greenwood and the Polish staff at the nursery, including the claimants. We noted that Ms Greenwood’s evidence was largely consistent with her witness statement when she was cross-examined. However, as highlighted above, the financial claims about the business were not corroborated by the business records which could have been provided.

[66]Helena Mofflin, the respondent’s accountant, was a straightforward witness whose evidence was largely consistent with Ms Greenwood’s regarding the business and its financial difficulties. She confirmed that the income from the business had been significantly overstated by somewhere between £60,000 and £70,000 which was the background reason why the respondent’s nursery business had got into dire financial straits. She also confirmed the evidence surrounding the decisions to reduce the staffing of the administration of the nursery business and the cook. Orally she also corroborated the evidence regarding steps taken by Ms Greenwood to try and secure the income by other means, including the further bank loan and overdraft extension.

[67]In oral submissions supported by the skeleton argument, the respondent argued that the reason for the redundancy was the financial distress of the business identified in spring 2023, the respondent took a reasonable decision to reduce the staff numbers by way of getting rid of the nursery administrative staff and the cook as they were discrete roles which did not impact on the potential number of child-clients that the nursery could continue to cater for. The criteria were objective, it was claimed. There were genuine and sufficient reasons for the decision to make the selected individuals redundant. The respondent claimed that they acted reasonably and fairly throughout in their selection procedures and communication with the staff identified for redundancy. Those made redundant were given sufficient notice and were offered alternative employment. In relation to the claims of discrimination on the basis of race or Polish nationality, this was denied and the respondent argued that the claimants had not met the burden of proof in demonstrating that the redundancy decisions were brought about because of issues relating to the race/nationality of those selected. It was a coincidence that the four selected, including the claimants, happened to be Polish. The respondent emphasised that the second claimant was given a promotion in February 2023, that the claimants were given very favourable references, that the claimants were offered alternative roles (albeit on lower pay) and that the second claimant kept her child in the nursery until the end of July 2023 and that these factors were inconsistent with the allegations of discrimination on the basis of race/nationality. The respondent argued that the redundancies were made squarely on the basis of the OFSTED child-to-nursery-teacher ratios. Relevant Findings of Fact

[68]We find that there was no selection for the pool for redundancy other than the four women, all Polish nationals, who were ultimately made redundant. We were satisfied that the claimants were amongst the most experienced nursery nurses in the business with the highest qualifications, if not the best-qualified members of staff. These factors probably point to why they were doing administrative roles at the time of the redundancy. There was no consultation and discussion regarding alternatives. The claimants’ thoughts about securing the future of the nursery were not sought. In fact, there was no real thought-out procedure. The respondent did not follow any internal policy as none existed. Only the four members of staff who got the letters regarding the redundancy in May 2023 were the same ones told that they were being made redundant after the meeting on 22 May 2023. No other staff were informed in writing of potential redundancy. There was a glaring gap in the evidence in that there was no evidence that Roxanne Hill or anyone else was considered for redundancy, given that Ms Hill in particular also had considerable administrative responsibilities. Ultimately, the selections were procedurally unfair All the evidence pointed to a decision having been made regarding making the four Polish employees redundant before the situation was even discussed with them on 22 May 2023 and the redundancy was confirmed in writing immediately after the meetings

[69]Nonetheless, despite the deep unhappiness that the claimants felt regarding the situation surrounding their redundancy, they provided no detailed, reliable evidence that they had been selected on the basis of race or their Polish nationality. The evidence was vague and general that, in effect, Ms Greenwood regarded the Polish staff differently and appeared friendlier to the other white British staff. There was no evidence or racial slurs nor the claimants being treated differently because of their racial or national background. They complained at the hearing that they were essentially suspicious of Ms Greenwood and Miss Hill because they used to gossip together, sometimes behind closed doors, and it seems that the claimants feared that they were gossiping about them. Further, there was an example of the claimants being told off for using the Polish language in front of the children. In cross-examination, Ms Greenwood genuinely gave evidence that she thought that young children should not be exposed to other languages because it would confuse them. When they had the meeting on 22 May 2023 and following that meeting, there was no evidence that race or Polish nationality was raised by the claimants, nor following their dismissal on 2 July 2023. What was the reason or principal reason for dismissal?

[70]This was unclear. It seems that the reason for the dismissal, in very general terms, was redundancy linked to financial pressure on the part of the respondent business. As the panel of judges we were satisfied, in general terms, by what is summarised [at §9 & 10] the respondent’s skeleton argument in terms of financial distress from as early as November 2022. The financial difficulties affecting the business apparently arose due to: i. Overstated income figures by the seller, leading to a financial shortfall. ii. Persistent operating losses, making cost-cutting measures necessary. iii. Efforts to stabilise the business, including loans and payment holidays, proving insufficient. iv. The need to maintain the legally required staff-to-child ratio under OFSTED regulations, meaning that only non-regulated administrative roles could be considered for redundancy. Was it a potentially fair reason?

[71]The Tribunal found that the financial stress was a potentially fair reason, with the emphasis on potentially. We noted that the respondent claimed that the respondent had no alternative but to reduce staffing costs through redundancy. The respondent had the legal burden of proving this, however.

[72]The next issue that we had to consider was did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that reason as a sufficient reason to dismiss the claimants?

[73]The Tribunal accepted, in general terms that the respondent-business was a small organisation. The precise size in terms of exact numbers of children and staff in April to July 2023 was unclear. It did not have a human resources department and we took judicial notice of the fact that the small size would limit, for example access to advice and finance. Nonetheless, the respondent through Ms Greenwood demonstrated that she had access to an accountant-bookkeeper, solicitor and showed during the hearing that she knows how to access professional advice available online. She could have taken bespoke advice. In organising the redundancy she went to ACAS and followed their website to some degree e.g. using template letters.

[74]However, we found that the respondent, though Ms Greenwood, did not act reasonably in all the circumstances in deciding to make the claimants redundant. The reasons for our lack of satisfaction include (but are not limited to):a. There is no clear record of the selection criteria. The respondent has not demonstrated how the selection was made. In vague and general terms, the respondent claimed that they (Ms Greenwood upon the advice of Ms Mofflin) decided to make the admin staff and the cook redundant. However, there was also a great deal of largely uncontested evidence that the claimants’ roles included a great deal more than admin in the upstairs office part of the respondent’s premises, but also that they worked in the play/classrooms where they worked directly with the children and their level child-related qualifications were considered in the supervision of the children.

b. The evidence about the financial problems was very general. Whilst we accepted that there were financial strains at the time, we were entirely unable to judge the situation that faced the respondent in the spring and early summer of 2023, not least due to the lack of background, potentially collaborative financial evidence. We noted details, such as that the business has survived, that the claimants were paid off by September 2023 and, in the interim, that Ms Greenwood was able to pay herself throughout the relevant time. The business did not become insolvent, and the respondent has/had an arrangement with the Insolvency Service to re-pay the loan to them.

c. The evidence that we did see seems to amounted to nothing more than a knee-jerk decision along the lines of “we can solve our problem by getting rid of the admin and cook”.

d. There is no evidence of the basis upon which Ms Greenwood thought that she and Ms Hill thought that they could manage all the admin tasks unaided, other than a generalised assertion.

e. There was no evidence of the respondent’s thought process, and particularly at the time and before 16 May 2023, in selecting the claimants, the cook and one other (who all happened to be Polish nationals).

[75]We also found that Ms Greenwood had made the decision to “let go” the claimants and the cook before 16 May 22 May. We find that the meeting of 16 May was cosmetic and amounted to nothing more than an “informing meeting”, rather than meaningful consultation.

[76]Linked to this, we found that there was no genuine offer of alternative, suitable employment within the nursery looking after the children. We found that the offers which purported to be made, roles involving looking after the children, were put forwards in a confused and confusing manner. When alternative nursery positions were supposedly offered, they were immediately retracted with Ms Greenwood saying words to the effect “but you would not want the positions anyway”.

[77]We note that there was no clear, transparent evidence of who was allegedly in the pool of staff considered and we are not clear that Roxanne Hill, who was clearly a long-standing friend of Ms Greenwood, was ever in the potential pool. If Roxanne Hill was considered (about which we were not satisfied) we do not see any evidence of consideration or why it was decided that she should be retained and the claimants made redundant.

[78]We find that Ms Greenwood did not make it clear to the claimants at their 22 May 2023 meetings, who was in the pool of potential candidates for dismissal, or indeed who was in the pool at a later date.

[79]We also noted that the second claimant was challenged in cross-examination by the respondent about the pool of potential candidates for redundancy. At the hearing she was asked: The day of the meeting regarding redundancy, did you ask about Roxanne? Her response was “I asked Ms Greenwood in an informal manner (there was) No explanation. I did not get an answer. I did not carry on. I asked why me and not Roxanne?” This exchange between Ms Zaman and Ms Greenwood was described as having taken place in a corridor, almost in passing.

[80]There was no detailed consideration of the claimants’ roles, nor comparisons made with anyone else, and critically, no comparison with Roxanne Hill whose role was apparently closest to the claimants’ roles.

[81]We also noted that there was also no evidence that the respondent ever asked the claimants for input or suggestions regarding keeping the business operational.

[82]In relation to appeal of the redundancy decisions, we were not satisfied that there was ever a genuine offer of appeal due to there being no one else to appeal to, although we noted that the Ms Greenwood could have offered to reconsider her decision on behalf of the respondent, and also could have obtained professional advice and even included, for example, her accountant in any appeal.

[83]We also found that there was no evidence that the second ever received a formal redundancy letter, although Ms Maczynska did receive such a letter dated 3 July 2023 by registered post. Whilst Ms Greenwood said that a letter had been sent to Ms Zaman by registered post, we have not seen any evidence of posting. We noted with interest that the cook, Boguisha, who was made redundant at the same time as the claimants seems to have been informed regarding her redundancy by Ms Greenwood asking the first claimant to do so on her behalf. The request was made by text message dated 2 July 2023.

[84]Overall, we find that the respondent’s actions were very unreasonable in the circumstances, the circumstances including the size of the respondent’s business and the administrative resources. We find that Ms Greenwood had already made her decision to make the claimants and two others redundant by 16 May 2023. Thereafter she was “going through the motions” only. Did the respondent adequately warn and consult the claimants?

[85]For the avoidance of doubt, we find that there was no warning whatsoever. The decision “came out of the blue”. The second claimant was particularly taken by surprise because she had been given a pay rise and promotion in February 2023 which she took, inter alia, as acknowledgement of her competence. As set out above, through Ms Greenwood, the respondent’s mind was made up by 16 May 2023 and there was no consultation whatsoever. The whole decision to make redundancies seems to have been made in a panic when Ms Greenwood realised that the “Love Our Child” nursery business had not been as profitable and financially secure as she had assessed when she bought the business. Did the respondent adopt a reasonable selection decision including its approach to a selection pool?

[86]Again, and for the avoidance of doubt, there was no evidence of pool selection. One would expect to see such a key decision to be recorded in business records and it being explained to the claimants at the meetings when the issue of redundancy was discussed with them. It was not. Ms Greenwood claimed in oral evidence that Roxanne Hill’s position was also reviewed. However, the respondent was unable to evidence why Roxanne Hill was apparently not in the pool of potential people to be redundant. The respondent took reasonable steps to find the claimants suitable alternative employment

[87]As set out above, there was confused and confusing evidence about whether there was an offer. We do not find the offers to have been genuine, not least because any such offers appear to have been made ambiguously and retracted as soon as offered on the basis that Ms Greenwood did say that she assumed that the claimants would not be interested in the nursery-based roles. Was the dismissal within the range of reasonable responses?

[88]In reaching our decision we had regard to the leading case of British Home Stores Ltd v Burchell

[1980] ICR 303

EAT. We accept, in general terms, that the respondent, as corroborated by the evidence from Helena Mofflin, was under some financial pressures, but we have not been given detailed or reliable evidence about the background, so we are unable to find the respondent’s decision to have been reasonable. The decision was also procedurally unfair in any event for all the reasons explained above.

[89]For the avoidance of doubt, the claimants claims for unfair dismissal are successful. Race discrimination claim

[90]Turning to deal with the allegations of direct race discrimination engaging Equality Act 2010 section 13. We have found that the respondent did dismiss the claimants who are Polish nationals unfairly. The respondent also failed to pay their wages on 31 July 2023, although it was agreed that the outstanding wages were paid subsequently.

[91]However, were the claimant’s subject to less favourable treatment on account of their Polish nationality? In reaching our decision we have borne in mind that we have to decide whether the claimants were treated worse than someone else was treated. There must be no material difference between their circumstances and the claimants’ situation. If there was nobody in the same circumstances as the claimants, then the Tribunal has to decide whether they were treated worse than someone else would have been treated.

[92]The claimants say that they were treated worse than Roxanne Hill and Amy Fitzgerald (Room Leader). In the alternative the claimants rely on a hypothetical comparator which would be as follows:(1) For the first claimant, an Assistant Deputy Manager/Administrative Manager who was English; and

(2) For the second claimant, a Deputy Manager who was English. Crucially we have to decide whether less favourable treatment suffered by the claimants was it because of race.

[93]We find that the evidence regarding whether the claimants were treated less favourably due to their nationality to be limited to circumstantial evidence only. The was no direct evidence of decisions made on the basis of race or nationality, other than that the four people being selected for redundancy were all Polish nationals. This is an important factor which he had at the front of our mind, but, on its own it is an insufficient reason. As Ms Morgan emphasised, there needs to be something more. The claimants confirmed that there was never any racist language or racist slurs used in the nursery workplace. Whilst the claimants were concerned about gossiping behaviour between Ms Greenwood and Ms Hill, they were not aware of the content. The claimant’s noted that Ms Greenwood’s original small business which was amalgamated with the “Love Our Child” nursery business was entirely lacking in racial diversity. However, we were not satisfied that any of these complaints meant that the decision to select the claimants for redundancy was on account of race.

[94]The closest that the claimants got to identifying behaviour based on race or nationality was to say that they had been told off by Ms Greenwood for speaking in the Polish language in front of the children, which we accept happened. Ms Greenwood said that she did not want her staff to speak in Polish in front of the children because, she asserted, it would confuse them. We are of the view that it is an advantage for children to be brought up in a multi-lingual setting, although others might take a different view and we note that there was no expert evidence on the point. We are of the view, therefore, that Ms Greenwood is wrong in thinking that children exposed to more than one language become confused. However, we also find that Ms Greenwood genuinely believed that exposing the children to the Polish language would be bad for their linguistic development. We found that the “telling off” of the claimants regarding speaking Polish in the workplace was born of misunderstanding child development and because of Ms Greenwood’s ignorance. However, we were firmly of the view that this did not amount to the “telling off” being motivated by issues or race or nationality and there was no evidence that the issue of speaking Polish in front of the children played any part in the decision to dismiss the claimants.

[95]We also note the important background matter that the second claimant was given a promotion and pay rise in February 2023 i.e. within months of the decision to dismiss the claimants. This undermines the contention of discrimination because it is difficult to see that the promotion and pay rise would have been made had the respondent been intent on discriminating on the basis of race/nationality.

[96]We noted that the claimants were not paid on time. Ms Greenwood explained at the beginning of July her reasons linked to financial pressures. Ms Greenwood did pay the claimants the outstanding pay when she had the resources to do so. There was no evidence that the late payment of wages was as a result of discrimination due to race or Polish nationality. Rather, the evidence pointed to the delay in payment being due to the chaotic financial situation of the nursery business in the summer of 2023.

[97]Instead, on the balance of probabilities, we were satisfied that the claimants were identified for redundancy because of the administrative role that they performed. The respondent identified that money could be saved by her and Ms Hill meeting the admin roles themselves, and also by getting rid of the cook. Reducing the admin (and cook’s) roles meant that discrete areas of business expense could be saved which would not disrupt the overall running of the nursery. Ms Greenwood decided that she and Ms Hill could cover the admin roles without any increased costs to the business. The OFSTED-imposed teacher/child ratios were non-negotiable and fixed. However, getting rid of the admin and cook roles performed by the claimants and their, as it happened, Polish colleagues, were staff reductions which did not adversely affect the OFSTED-required child-to-teacher ratios. We found therefore, that, however chaotically the respondent made the decision to dismiss the claimants (and the two others), it was borne of a panicked decision to keep the business viable. The decision to dismiss the claimants was not brought about due to considerations of the claimants’ race or nationality.

[98]So we find that the burden of proof has not shifted. The claimants have failed to satisfy us that the decision to dismiss them was on account of race and/or their Polish heritage, including their natural tendency to communicate in the Polish language with each other. However, even if the respondent had taken on the burden of proof to satisfy the Tribunal regarding their decision to dismiss the claimants, then the respondent has shown a non-discriminatory reason for the treatment of the claimants, namely the fact that they were performing admin roles which did not impact the child-to-staff ratios, and so the direct racial discrimination claims fail. Conclusion

[99]The Tribunal unanimously found that the claimants were unfairly dismissed and so the claims of unfair dismissal pursuant to s94 of the Employment Rights Act 1996 are successful.

[100]We unanimously found that we were not satisfied that the claimants were subject to less favourable treatment in the form of direct race discrimination as claimed and in breach of section 13 of the Equality Act 2010, and so the claims for direct race discrimination are dismissed Tribunal Judge Holt 9 April 2025

10 April 2025