Nursery worker who encouraged toddlers to kick and taunt colleague was unfairly dismissed, tribunal rules

13 Jul 2021 By Elizabeth Howlett

Judge says childcare provider failed to properly investigate ongoing harassment campaign against staff member

A nursery worker who encouraged children to kick her co-worker and call her names was unfairly dismissed, a tribunal has ruled.

The court decided that the nursery, Tender Loving Childcare Centre based in Kirkintilloch, Scotland, failed to properly investigate its assumption that the actions of Miss S Flynn were part of an ongoing campaign of harassment and bullying following allegations from another member of staff.

However, Flynn’s award was reduced by 75 per cent to reflect the likelihood that she would have been dismissed had a fair process been followed.

The tribunal heard that Flynn had been employed as the team leader in the nursery’s baby room since 2008. Her responsibilities were to manage the staff in the baby room and ensure the children got enough physical activity. Prior to the tribunal she had no formal disciplinaries.

On 30 January 2020, a nursery practitioner, Laura McLauchlan, approached nursery manager Ms Clark because she was “upset” about a situation in the baby room with Flynn. 

A few days later, on 3 February, McLauchlan provided a six-page statement containing a number of allegations about incidents in the baby room.

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She alleged that on 4 October 2019, Flynn had encouraged the children to “walk around saying ‘smelly Laura’” because Flynn was “annoyed” that one of the children learned to say McLauchlan's name first.

McLauchlan also alleged that on 18 October, Flynn taught the children to kick her by “showing them how to and lifting her feet to me”.

She also said that Flynn had made remarks about her personal life and relationships, had called her “gay” while discussing football and said she was a “Hun” – a Scottish slur used towards Protestants and fans of the Rangers football team.

Clark showed the statement to the nursery’s co-owner and director, Ms Wilson, and they conducted meetings with the baby room staff the same day, all of whom corroborated McLauchlan's story. However, one of the staff said they assumed it was a “joke” between Flynn and McLauchlan.

In her interview, which the tribunal noted was “short”, Flynn denied encouraging the children to kick McLauchlan and call her names, and said she was “lying”.

Flynn was invited to a disciplinary meeting but, because of various admin issues and schedule clashes with her union rep, she was not able to attend until 11 March. The meeting was conducted by former nursery manager Ms Deighan, who is also Clark’s mother. Flynn was accompanied by her trade union representative.

Following the meeting, Deighan dismissed Flynn for misconduct, saying that she was unable to “completely ignore the other issues” because it pointed to ongoing bullying of a member of staff. 

The tribunal found that Deighan considered Flynn’s use of the children as part of her harassment a “serious offence” and was concerned for the children and the nursery's reputation. Flynn appealed the decision but was unsuccessful.

Deighan told the tribunal that she did not want someone in her nursery who “behaved in such a sadistic and selfish manner to involve two little babies in her campaign”. She also said Flynn’s behaviour had been going on for months and was “a bit of a hate campaign, real harassment”.

However, the tribunal said it was “not satisfied” that the nursery carried out a sufficient investigation as Deighan had “made it clear” that she relied on McLauchlan’s written statement when deciding that Flynn was at the centre of a campaign of harassment. The nursery also failed to put that allegation to Flynn in interviews, or at the appeal process.

Flynn was awarded £16,984.30 in compensation, but this was reduced by 75 per cent to  £4,246.08 as it was likely she would have been dismissed in any event had a fair process been followed.

Tender Loving Childcare Centre has been contacted for comment. Flynn could not be reached.

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