Childcare counsel - pregnancy and probation, payslips for occasional workers

A new nursery manager was appointed last September subject to a six-month probationary period. She announced she was pregnant last November. Her performance has been poor. She has suffered from quite a lot of pregnancy-related issues and has had quite a lot of time off. Is it possible to extend her probationary period when she returns from her maternity leave?

It would pose legal risk to extend her maternity period on her return: she could argue that extending the probationary period is a detriment and/or less favourable treatment related to pregnancy. No comparator would be required, so the nursery could not rely on the defence that it was not treating her less favourably than a male employee in a similar situation who was, for example, off sick.

The only way to avoid the risk is if the nursery can prove that her performance was poor before she became pregnant, in which case it could seek to argue that the reason for the extension is not related to her pregnancy. I suspect that this is going to be difficult to prove given that she may have already been pregnant when she started in September. Overall, I would therefore suggest not extending the probationary period and instead dealing with any performance issues upon her return through the nursery’s normal performance management process.

The nursery engages the services of a caretaker to carry out odd jobs on an ‘as required’ basis. He has requested a payslip for payments made to him. Is he entitled to one?

The right to receive a payslip currently applies to employees only. Note, however, that depending on the arrangements in place with your caretaker and the length of the engagement, it may be possible for him to claim that he is an employee and entitled to employee-related rights.

It should also be noted that the right to receive a payslip is to be extended to all workers, with an anticipated implementation date of 6 April 2019. In addition, employers will be required to state the hours being paid for on payslips where the amount of wages or salary varies by reference to time worked. In those circumstances, employers will have to state the total number of hours worked as either a single aggregate figure or separate figures for different types of work or different rates of pay. The changes are designed to increase transparency over whether workers are paid in accordance with their contracts and the minimum wage.

To ask Caroline a question, email hannah.crown@markallengroup.com