A recent Employment Appeal Tribunal case illustrates the cost of not following the applicable employment procedure for a family employing a baby-sitter/nanny.
Ms Drewett's parents and Mr and Mrs Penfold were friends and from February 2005, Ms Drewett baby-sat the Penfolds' three young children. Unfortunately, Mrs Penfold died in June 2006 and as a consequence, Ms Drewett began to baby-sit more often, becoming employed to carry out general nanny and housekeeper duties from February 2007.
Ms Drewett informed Mr Penfold of her own pregnancy in June 2008 and then began to experience problems with the employment relationship, which culminated in her being sacked in July 2008. She claimed unfair dismissal and pregnancy related sex discrimination.
The Employment Tribunal had no difficulties in finding that the dismissal was unfair and commented that the allegation of 'improper performance of duties' was one of the thinnest cases of alleged poor performance it had come across in hearing unfair dismissal cases. As Mr Penfold had not followed the statutory disciplinary/dismissal procedure which applied at the time, it also awarded an uplift of 20% on the unfair dismissal compensation element. The Employment Tribunal also agreed that Ms Drewett had been discriminated against on the grounds of her pregnancy.
The Employment Tribunal awarded compensation of:
- £9194.50 for the unfair dismissal - plus 20% uplift
- £4,000 injury to feelings in respect of the discrimination
- £602 in lieu of holiday pay
- Two weeks' basic award for the unfair dismissal
The Employment Tribunal's justification for setting the uplift at a 'modest' 20% for the "complete disregard of the statutory procedure", was due to Mr Penfold's "very tragic and awful family situation since the loss of his wife".
Ms Drewett appealed to the Employment Appeal Tribunal, who agreed that the loss of Mr Penfold's wife, some two years earlier, was an irrelevant consideration. The Employment Appeal Tribunal increased the uplift in compensation to 50%, held that the uplift applied additionally to the injury to feelings award in respect of the discrimination and increased the two weeks' basic award to four weeks. Thereby increasing the total sum to be paid to over £20,000.
From April 2009, employers should follow the Acas code of practice on disciplinary and grievance procedures, along with the supplementary Acas guide, when taking disciplinary action against any employee. If there is an unreasonable failure to follow this Code, compensation can now be increased by a maximum uplift of 25%.
Disregard of an employee's rights, even in a domestic situation, can result in claims being made in the Employment Tribunal and significant compensation being awarded - you have been warned.
Published - February 2010
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