Childcare Counsel - disciplinary hearings

Q A nursery worker was recently invited to a disciplinary hearing. She has asked to bring her husband, who is a trade union official. The nursery does not recognise any union and does not usually allow family members to accompany workers. Are we legally required to allow her husband to attend?

A If reasonably requested, the employee has the legal right to be accompanied at the disciplinary hearing by a fellow worker, a union official employed by a trade union, or a union official who is not employed by the union but who has been reasonably certified by the union in writing as having appropriate experience of, or as having received training in, acting as a worker’s companion at such hearings.

Therefore, regardless of the nursery not recognising any union and the individual being the employee’s husband, there will be an obligation to allow the employee to be accompanied by the trade union official. The nursery is, however, entitled to ask for confirmation that the husband has been certified by the union to act as a companion at disciplinary hearings, and it should be made clear that he is being allowed to accompany the employee in that capacity.

Q Is an employee working a phased return to work period entitled to statutory sick pay on shorter days worked and/or non-worked days?

A Depending on the phased return working pattern, this is possible for non-worked days, but unlikely. Employees are entitled to up to 28 weeks’ statutory sick pay for each period of incapacity for work or linked periods of incapacity. A period of incapacity for work is a period of four or more consecutive days of incapacity. Periods of incapacity for work are linked if they are within 56 days of each other and any period back at work will bring the period of incapacity for work to an end.

Any days worked, even part-days, would not count as a day of incapacity for the purpose of the statutory sick pay entitlement rules. Therefore it would not be possible to claim statutory sick pay to top up pay on those days.

In terms of non-worked days, it is unlikely that those days would qualify for statutory sick pay. Employees have to be off work sick for three qualifying ‘waiting days’ (i.e. days which would normally be worked) before statutory sick pay starts. An employee on a phased return to work would be unlikely to serve enough waiting days in between each working day to qualify for statutory sick pay on the non-worked days.