Childcare Counsel

Caroline Robins
Monday, June 11, 2018

Our resident employment lawyer Caroline Robins, principal associate at Eversheds, answers your questions

Q About two months ago, one of the nursery’s employees broke her leg while on holiday. She is now fully mobile and wants to return to work. However, the nursery is worried that she is rushing back to work too quickly and would prefer her to remain absent for a further few weeks. Can we delay her return?

A The nursery has a legal obligation to protect its employees’ health and safety at work, and therefore has the right to require an employee to remain away from work in the event that it has genuine concerns regarding that employee’s fitness.

However, the employee may be entitled to receive full pay while she remains absent. This will ultimately depend on the basis of the nursery’s belief that the employee is not yet fit for work.

Where there is evidence, such as from occupational health, a report from the employee’s GP or an unexpired ‘fitness for work’ certificate stating the employee is not currently fit (and thus a reasonable basis for an employer to have concerns about an employee’s return), an employee can usually be required to remain at home on sick pay until the nursery is reasonably satisfied the person is fit to return. If, however, the only evidence available indicates that the employee is fit to return, but the nursery is preventing a return, the employee would usually be entitled to full pay.

I suggest that the nursery obtains a medical opinion as to whether the employee is yet fully fit to return to work. Pending that, the employee should be paid in full to avoid any claim for unpaid wages.

Q I have heard that if 50 per cent or more of a role ceases to exist, then the role will be redundant…

A There is no 50 per cent rule as a matter of law. A number of factors are taken into account in determining whether a role is redundant, including the requirements of the business, the particular kind of work, the number of employees required to do it, and the place in which the work is done. Rather than there being any percentage test, each case is considered on its own facts.

Q Is it true that an employee’s continuous service resets after moving between different settings within a group of nurseries?

A This is also not correct. Moving to be employed by a new setting in the same nursery group will not usually break or otherwise ‘reset’ an employee’s continuous service.

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