The claimant was employed by the Respondent Créche as a Montessori Teacher and was dismissed for allegedly slapping a child, when in her care, on the hand. The incident had become apparent to the child’s mother and aunt who then complained to the manager. The manager took written statements from both women and passed them onto the owner of the company; the Respondent.

The claimant was dismissed for gross misconduct and was handed a letter of dismissal, following the owners' meeting with a second manager regarding the incident. The claimant denied the allegations against her, was not interviewed prior to her dismissal and the respondent selected an employee to act as witness to the dismissal. 

The EAT set out the standards expected of an employer in dismissal cases:

“The Tribunal is very conscious that dismissal of the claimant for alleged assault has the gravest consequences for her securing future employment especially given the nature of the business. It is incumbent on the respondent to respect the claimant’s right to fair procedures. It is essential that the respondent adhere to the principles of natural and constitutional justice and ensure that the claimant is afforded an opportunity to defend herself and tell her side of the story.”

The EAT determination also quoted from Hennessy v Read & Write Shop Ltd UD 192/1978, which sets out the general approach of the Tribunal in cases of dismissals for conduct. This case set out a test of reasonableness in deciding whether a dismissal was unfair. 

* Was the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant reasonable?
* The conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the appellant should be dismissed?

“The Tribunal held that the employer must act reasonably. Indeed Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides that the reasonableness of the employer’s conduct is now an essential factor to be considered in the context of all dismissals. Section 5, inter alia, stipulates that:

‘... in determining if a dismissal is an unfair dismissal, regard may be had... to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal’.”

The claimant was awarded €26,000 in compensation for unfair dismissal and the equivalent of two weeks’ pay for non-payment of notice. Case determination:
http://bit.ly/ZL938E