Nursery worker dismissed for refusing contractual hours: unfair dismissal but no whistleblowing protection
A nursery worker with two years' service was unfairly dismissed for refusing to work her contractual hours, but her whistleblowing claims failed. She was awarded £959 in compensation.
1 min read · Last updated 18 May 2026
Case details
Key facts
- Miss Leigh was employed as a nursery worker from 30 April 2018 until dismissal on 22 February 2021.
- She was dismissed for refusing to work her contractual hours, which the tribunal found was the principal reason.
- The tribunal found that the respondent's investigation and dismissal process were outside the band of reasonable responses.
- The tribunal held that the claimant's disclosures did not qualify as protected disclosures under whistleblowing law.
- A Polkey deduction of 100% was applied because the tribunal found dismissal was inevitable even with a fair procedure.
Timeline
-
Employment start
Miss Leigh started working at Bright Eyes Day Care Nursery Ltd.
-
Mother's resignation
Miss Leigh's mother resigned from the nursery.
-
Permanent contract start
Miss Leigh began as a permanent member of staff.
-
Alleged incident
Miss Leigh witnessed an incident between Mrs Clayton and a CCTV engineer.
-
Disclosure to Ms Mowbray
Miss Leigh reported the incident to assistant manager Ms Mowbray.
-
Disclosure to NSPCC
Miss Leigh reported the incident to the NSPCC.
-
Probation meeting
Miss Leigh was warned about her hours of work.
-
Dismissal
Miss Leigh was dismissed for not successfully completing her probationary period, primarily due to refusal to work contractual hours.
-
Early conciliation started
Miss Leigh started early conciliation.
-
Claim presented
Miss Leigh presented her claim to the Employment Tribunal.
The legal issue
The tribunal had to decide whether the nursery worker was unfairly dismissed for refusing to work her contractual hours, and whether she had made protected disclosures under whistleblowing law that were the reason for her dismissal.
The outcome
The tribunal found that the claimant was unfairly dismissed. The respondent's investigation and dismissal process were outside the band of reasonable responses. However, a 100% Polkey reduction was applied because the tribunal concluded that dismissal was inevitable even with a fair procedure. The whistleblowing claims failed because the disclosures did not qualify as protected disclosures.
Compensation breakdown:
- Basic award: £383.68
- Compensatory award (loss of statutory rights): £191.84
- Total: £575.52 (plus £383.68 breach of contract damages = £959.20 total)
Lessons & takeaways
- Even if dismissal is inevitable, employers must follow a fair procedure – failing to do so can still result in a finding of unfair dismissal, though compensation may be reduced.
- Whistleblowing claims require the disclosure to be in the public interest and made to an appropriate person – internal complaints about minor incidents may not qualify.
- A Polkey reduction of 100% means the employee gets no compensation for future loss, only basic award and loss of statutory rights, if the tribunal finds dismissal was certain regardless of procedure.
- Refusing to work contractual hours can be a fair reason for dismissal, but the employer must still conduct a reasonable investigation and follow a fair process.
What this case shows in practice
A nursery worker with two years' service was dismissed after refusing to work her contractual hours. The tribunal found that the principal reason for dismissal was her refusal, which could have been a fair reason. However, the employer's investigation and dismissal process were flawed – they did not follow a reasonable procedure. This meant the dismissal was unfair, even though the outcome might have been the same.
The worker also claimed she was dismissed for making protected disclosures about an incident involving the nursery manager. The tribunal rejected this, finding that her reports did not qualify as protected disclosures under whistleblowing law. The disclosures were about a minor incident that did not raise public interest concerns.
What the losing side could have done differently
The employer could have avoided a finding of unfair dismissal by conducting a proper investigation and giving the worker a fair opportunity to respond before deciding to dismiss. Even though dismissal was likely inevitable, a fair process would have protected the employer from liability for the unfairness.
Why the result matters for similar claims
This case highlights that procedural fairness matters, even when the employer believes dismissal is justified. A 100% Polkey reduction means the worker received only a basic award and a small sum for loss of statutory rights – no compensation for lost earnings. This is a reminder that the amount of compensation can be drastically reduced if the tribunal finds dismissal was inevitable. It also shows that whistleblowing claims require careful assessment – not every complaint about a workplace incident will qualify for protection.
Similar cases
Unfair dismissal but 100% Polkey reduction due to workplace closure
A former employee was unfairly dismissed but received only limited compensation because the tribunal found he would have been fairly dismissed a month later when the workplace closed. Total award: £12,419.29.
Whistleblowing during probation: dismissal for suitability upheld
A Head of People Services with only four months' service was dismissed for lack of suitability during her probation. The tribunal found no link between her protected disclosures and the dismissal, rejecting claims of automatic unfair dismissal and detriment.
Senior healthcare assistant dismissed after breakdown in working relationship: unfair dismissal but 75% Polkey reduction
A senior healthcare assistant was unfairly dismissed after a breakdown in working relationships, but the tribunal applied a 75% Polkey reduction, awarding £6,975.14 in compensation.
Care home employee wins £15,963 after whistleblowing dismissal
A care home employee who was dismissed and subjected to detriments after making a public interest disclosure has been awarded £15,963.47 by the Liverpool Employment Tribunal.