Childcare Counsel - absences through illness and stress

Our nursery manager has been absent because her child is ill or has been sent home from school. We have paid her for that time off, but this has happened several times and can’t continue to do so…

Employees have the statutory right to a reasonable period of unpaid time off for dependants, including for unexpected disruption to care arrangements, e.g. a child being ill or sent home from school.

Any policy regarding paid/unpaid time off is operated in a consistent manner to avoid claims that an employee is being treated unfairly. If employees have, over a period of time, generally been paid during periods of ad hoc absence and the nursery now wishes to change this, it is possible that payment during such periods has become contractual through ‘custom and practice’. Employees’ agreement may therefore need to be sought to change the arrangement.

I would suggest a meeting with the nursery manager to explain the concern regarding the attendance levels, including the disruption caused as a result. Assuming there are no consistency issues, it may be that it can be agreed that any further instances will be unpaid. Ultimately, however, if substantial occurrences of absence continue (even if unpaid), you may need to deal with the matter more formally.

One of our staff members has been absent from work since last week, stating that they are unable to attend due to ‘stress and anxiety’. However, we know that this person worked as an entertainer at a children’s party at the weekend. We are already investigating them for theft – can we safely add an allegation of malingering?

In the circumstances you describe, adding an allegation of malingering may have limited value and could delay the process.

While the issue should be investigated with the employee, the fact of them working at the weekend will not necessarily mean that they have been dishonest in stating that they are unable to work at the nursery. It is often the case that the employee will claim that the weekend work is recreational/has ‘therapeutic value’. Medical advice could be obtained by the nursery in respect of any such response.

However, obtaining such advice may delay the conclusion of the disciplinary proceedings and the advice received may not be decisive. If the nursery is concerned to conclude the disciplinary process without delay, it may therefore decide to proceed with the allegation limited to the theft only.