This year has been a busy one for legislative change and nursery managers have had a lot to keep up with. There are many implications for employing people and Human Relations tasks can be time-consuming and confusing. The following guide outlines some of the most important changes, highlighting the need to always keep your HR documentation up to date.
PRE-EMPLOYMENT HEALTH QUESTIONNAIRES
The Equality Act which came into effect in October 2010 put a ban on pre-employment health questionnaires. This makes it illegal to ask a candidate to complete a health questionnaire before an offer of employment has been made.
The ban prevents you from asking the candidate questions to establish how many days of sickness absence they have accrued during previous employment prior to them being made a job offer. It also prevents you from asking these questions in a reference if an employment offer has not been made.
You may only ask about disability or health before the offer of a job is made, where the question relates to a person's ability to carry out a function that is intrinsic to that job. If a disability or health-related question would determine whether a person can carry out this function with reasonable adjustments in place, then such a question is allowed.
I recommend that you review your setting's job descriptions to ensure that the 'intrinsic functions' are specifically identified and, where possible, separated from other less important duties.
CONTRACTS
To make sure you are legally protecting your nursery, you need to issue a contract of employment which clearly outlines the terms and conditions of employment; this forms the basis of the employment relationship. Contracts need to be issued to staff within eight weeks of them starting their employment with you. A contract is made once the offer of employment is accepted. Some statutory rights are effective immediately, although most statutory rights don't apply until the employee has actually started in your workplace. Ideally, the contract should be issued before the new employee starts work.
It's also a good idea to have an employee handbook issued to all staff when they first start working with you. A simple practice to put into place, this is something that could save you a lot of time and problems in the future. The handbook outlines to your staff what is acceptable and what is unacceptable at work.
We have come across several nurseries that have problems with staff smoking or using mobile phones.
Within a handbook you can put policies into place to help protect yourself from such problems.
To make sure that you don't get caught out, I recommend that you review your handbook and contracts of employment every year. If you don't have employment contracts or handbooks already in your nursery and want to introduce them, you will need to consult with your staff and make sure they understand and agree with the terms that are outlined.
REFERENCES
When you send an offer letter and contract to a successful job applicant, ask them to provide you with the contact details for two referees. You can stipulate that they must both be employers and one must be their most recent employer. Make sure you mark the reference 'private and confidential' and for the attention of the named referee. If an applicant has not been employed, they may only be able to provide the details for personal referees, which will not give you the information you require.
So what is the purpose of a reference? The idea is to obtain information about a candidate's employment history, qualifications and experience and an assessment of the candidate's suitability for the job. You may want information on length of employment, job title, details of responsibilities, abilities, overall performance, time-keeping and reason for leaving.
There is, of course, no guarantee that you will receive a reference. An employer can refuse it, as there is no statutory duty to provide a former or existing employee with a reference.
It is common for a nursery to have a policy that provides a bare minimum reference. This should be communicated to all employees, applied consistently to all employees and not be used as a means of concealing something serious. When writing a reference, keep it factual and don't write anything that you might later regret.
DISMISSALS
Nursery owners often contact me to ask if they can dismiss someone who has only been with them a few weeks or months. The simple answer is yes. But you must be careful to ensure that you follow the correct disciplinary procedure. Some people think that because the employee has worked for them for less than 12 months, they can just tell the person not to come back to work. This is not true.
Nursery owners are often told that they don't need to worry about dismissing anyone who has less than 12 months service because they cannot claim unfair dismissal. This is correct. However, a person can make a claim for discrimination even if they have only been employed one day. Unfortunately, unlike an unfair dismissal claim, there is no cap on what payment for discrimination could be awarded.
When there is a possibility that you may dismiss an employee, always follow these rules, no matter what their length of service is:
- Investigate - discover the facts; interview any witnesses before considering whether any action needs to be taken
- Write to the employee and invite them to a hearing, stating the allegations against them and informing them that there is a possibility that they may be dismissed
- Advise the employee that they have a statutory right to be accompanied by a fellow worker or trade union representative
- During the hearing, make sure comprehensive notes are taken, as they will be required if you need to attend an employment tribunal
- Allow the employee to have their say and ask them if there are any mitigating circumstances to be taken into account
- After hearing all the evidence, adjourn the meeting to consider what actions are necessary
- Reconvene the meeting to give your decision and explain the outcome to the employee
- Confirm your decision in writing
- Inform the employee of their right to appeal against the dismissal
- Don't leave yourself open to allegations of unfair dismissal.
AGENCY WORKERS
On 1 October 2011 the Agency Workers Regulations will come into force. The regulations require that the basic working and employment conditions of agency workers are no less favourable than if the workers had been recruited directly by the hirer (nursery). The equal treatment entitlements relate to pay and other basic working conditions and come into effect after an agency worker has completed a 12-week qualifying period in the same job with the same hirer.
The 12-week qualifying period will start from 1 October 2011. It is not retrospective for those agency workers already on assignment.
As an employer, if you hire temporary agency workers through a temporary work agency, you will need to provide the agency with up-to-date information on your terms and conditions so that they can ensure that the agency worker receives the correct equal treatment, after 12 weeks in the same job.
As a nursery owner you are responsible for ensuring the suitability of the people you recruit to work in your setting. When recruiting a new member of staff, the many things you must consider will ensure that you comply with employment legislation and the safeguarding of children.
- Jacqui Mann is managing director of HR4Nurseries and can be contacted at www.hr4nurseries.co.uk
- Information: See Nursery World's online management guides for more HR advice at http://www.nurseryworld.co.uk/go/hr_update
