Picture the scene: a child has bruises after attending nursery for a day. One of their parents says this must have happened at the nursery. Nursery management contacts Ofsted who advise suspension of the member of staff pending an investigation.
Unhappily in what is an already stressful situation, employment law can sometimes seemingly conflict with what is required by Ofsted. Under employment law, employers must act reasonably and fairly if suspending an employee. But the EYFS' has stringent safeguarding and welfare requirements, including ‘Providers must take all necessary steps to keep children safe and well’, which can mean there is a temptation to suspend without consideration for the employee's rights.
As a nursery owner, you may have the unenviable choice: do you comply with Ofsted, or risk breaching employment law? The latter may cause you major financial problems if a tribunal claim is submitted. This problem rears its head often, with over half of our clients having raised this as an issue.
Suspension
Suspending a member of staff is hard enough without falling into the pitfall of making the situation worse with inappropriate wording.
One nursery owner was advised by Ofsted to make sure the employee ‘refrains from attending work’. I think what Ofsted meant was ‘you need to suspend this person’. If the nursery does not, this makes it very difficult to then dismiss them.
Often managers get confused about suspension. If you are going to suspend an employee you need to give them the reason so they understand what is happening. The reason for the suspension would then be the basis for the investigation, which would then also form the basis of any allegations at a disciplinary hearing. Everything must link together.
Make sure that you have a suspension clause in your employment contract or policy otherwise you will be in breach of contract. The wording of the suspension letter needs to be carefully thought through so as not to create an additional problem. You can’t just say to the employee ‘don’t come to work for the next week’.
Examples of good and bad wording:
A good example :
I am writing to inform you that you have been suspended pending the outcome of an investigation into concerns over your:
- Conduct – allegedly losing your temper and shouting at face level at a child in your care.
- Safeguarding practices – allegedly grabbing a child by her arm, taking her across the room and physically holding her down on your knee.
A bad example :
You are suspended because you lost your temper with a child. (This is is not specific enough.)
Problems can also arise when Ofsted wants the owner to dismiss an employee for a safeguarding issue. I always advise putting the safety of the child first, but it’s not always as easy to dismiss someone especially if they have been employed by you for more than two years (as after this time they can then put in a claim for unfair dismissal.)
You also need to be really careful about the wording of any allegations. The full disciplinary procedures (possible suspension, investigation, disciplinary hearing and the right to appeal) must still be followed. If you do not then this would be automatically considered an unfair dismissal at an employment tribunal. The financial consequences for the nursery owner could be huge if this was to happen. Failure to do prove the process has been fair may see any damages awarded against the employer increased by up to 25%, while the maximum award is the employee’s annual salary.
References
Most offers of employment are based on receiving satisfactory references and Ofsted often requires two references for each member of staff. A huge emphasis is put on obtaining these two references. Some nursery owners I know are really worried what will happen when Ofsted visit if they don’t have two references for each member of staff. Trying to get these references can create a huge administration burden.
The purpose of a reference is to obtain information about a candidate’s employment history, qualifications, experience and 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. Most of the time you can get that information, but sometimes you can’t. You then have two problems. The first is that there is no legal requirement or statutory duty to provide a reference. So if you don’t receive a reference for an employee there is nothing you can do to ensure you get one. The second problem is that some people are frightened they will get sued so they will only provide a factual reference stating the date the employee worked there, the salary, job title and leaving date. This means the only good thing about the reference is that the person did actually work where they said they worked, as people do lie about this.
There need to be clear guidelines on what Ofsted will accept if no references can be obtained. How many times do you need to contact the previous employer? What does the nursery need to put on the employees' file? This would help reduce the amount of time spent chasing for paperwork which may never arrive.
