Posted on 14th August 2014 by Jenny Hyde in Case Confidential
Croner’s team of HR advice line experts have shared a recent case with us.
A nursery manager received a call from an employee’s mother, who advised that her daughter, a nursery nurse employed at the nursery, had been convicted of assaulting her husband witnessed by her three year old daughter.
The manager wanted advice on how to deal with this situation as she felt that this would have a severe impact on the employee’s suitability for her role and that she needed to be suspended immediately, so she called Croner’s employment team to find out what she should do. The employment consultant outlined the importance of not taking action against the employee simply because they had committed an offence outside work.
Croner asked the manager to consider the impact of the offence on the employee’s role and whether there was any potential risk to the children in the nursery as a consequence. In consultation the manager and consultant agreed that there was a clear and identifiable risk to the children based on the facts and decided that suspension with pay was the most appropriate option, pending further investigations.
The nursery manager was advised to find out as much as she could about the incident so that a decision could be made on the employee’s ongoing suitability for employment at the nursery. The consultant explained the importance of this meeting was to find out if this might happen in work and assess the potential risk to the children in the nursery.
An example letter to invite the employee to an informal fact-finding meeting was provided and some guidance notes were supplied to the manager to assist her with the meeting. The manager was also advised to ask questions such as ‘what triggered the incident’ and ‘what was the likelihood of it reoccurring’ so that the risks could be considered.
Following the investigation meeting, it became clear that the employee had reacted in this manner following a disagreement with her husband over childcare arrangements. This had led to her assaulting him without thinking about how it may affect their daughter who had witnessed the incident. The nursery manager felt that given the lack of mitigating factors and consideration of the child, together with the identifiable risk to her continuing to be employed at the nursery, they had no choice but to consider a dismissal.
The manager was taken through the process that would be required in order to schedule a formal meeting with the employee. The employee was forewarned in the invitation that the outcome of the meeting could result in the termination of her employment on the grounds of ‘Some other substantial reason’ namely her criminal conviction which directly impacted on her role as a nursery nurse.
During the disciplinary hearing, the manager and employee discussed the situation further and the employee was told that there was a risk that she wouldn’t be able to continue working in her current role due to her conviction. They discussed alternative employment within the company where she wouldn’t be in direct contact with children, however there were no vacancies. The manager ended the meeting and called the helpline for final advice and to review the meetings minutes.
It was agreed that there was no alternative but to dismiss the employee with notice. The manager was advised to write to the employee to confirm the decision and confirm her right of appeal against this decision.
This case shows that criminal actions should not be treated as an automatic reason for formal action or dismissal unless the offence is relevant to any of the employee’s duties. However, where the action directly affects the employee’s suitability for the role, providing a fair procedure is followed, dismissal can be a reasonable response. The matter should not be dealt with in haste and a thorough investigation of the facts is crucial.
Don’t forget all dot2dot customers have access to Croner’s team of employment law experts through their Helpline and we recommend that they are contacted for advice at all stages of an employment matter using helpline number 0844 561 8111. For further information, please call one of the dot2dot team on 01204 570390