Childcare Counsel - temporary contracts, suitability policies

We employ trainees on temporary contracts. One has been found to have bullied another nursery worker. This is unacceptable and we want to deal with it, but are not sure what disciplinary action can be taken against non-permanent staff.

A nursery may treat its junior employees as it would any other employee, and take such disciplinary action as it deems appropriate. The fact that the trainee is a non-permanent member of staff will not impact the process, although if they have less than two years’ service, the trainee will generally not have acquired protection against unfair dismissal.

However, where providing training to make individuals ‘work ready’ is the main purpose of the arrangement, it is possible that they may be deemed to be ‘common law apprentices’. This is so even if they are not formally called apprentices by the company. The arrangement and the terms of the contract of employment will be key considerations in this respect.

A common law apprenticeship arrangement has enhanced protection against termination. Except in cases of extreme misconduct, which case law suggests must be so serious that it is impossible to carry on teaching the apprentice, the contract cannot lawfully be terminated early. The bullying conduct you have described is unlikely to be extreme enough to justify dismissal.

Our advice would be to review the contract to determine whether the trainee may be a common law apprentice. If so, tread very carefully to avoid exposing the nursery to a breach of contract claim, and consider action short of dismissal, such as a final written warning, as an alternative.

We regularly ask staff, as part of our appraisal process, for confirmation that they remain suitable to work with children. However, we do not currently operate a staff suitability policy. Is there any obligation to implement one?

Nurseries are under a legal obligation to ensure the suitability of staff. While there is no legal obligation to have a written staff suitability policy, it can be a useful way of setting out staff’s legal obligations and the standards the nursery expects staff to adhere to.

Such a policy would usually highlight that staff have an ongoing duty to immediately notify the nursery of any matters that may impact their suitability to work with children, together with examples of when notifications by the member of staff to the nursery should be made.

All questions to hannah.crown@markallengroup.com