Q We want to dismiss an employee of three years who has a poor absence record for various minor health issues, has previously received formal warnings and has a live written warning. Can we escalate immediately to dismissal?
A Relying on expired warnings to elevate conduct into a dismissible offence is likely to result in a dismissal being deemed to be unfair in tribunal, so focus is on the absence issues since the live written warning. Unless there are other factors that would justify skipping a stage, the nursery should move to the next stage in accordance with the nursery’s usual absence management process, which would usually result in a final written warning.
Since the employee has more than two years’ service, she has sufficient qualifying service to bring a claim for unfair dismissal if her employment is terminated. Consider also the reason for the absences. While the health reasons may individually be minor, consideration should be given to whether there is any underlying health issue, and if there is, if it could amount to a disability under the Equality Act. If so, additional considerations arise, including whether the nursery has complied with its duty to make reasonable adjustments.
Q We wish to place an employee on secondment to another nursery within our group. Is a written agreement a legal requirement?
A There is no such requirement, although there is a requirement to give a written statement to the employee confirming statutory changes (which include place and hours of work), no later than one month after the change.
It should also be noted that a secondment arrangement will usually amount to a variation to an employee’s contract of employment, meaning that it should be ensured that they have agreed to the secondment arrangement.
Send your questions to hannah.crown@markallengroup.com
