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Lucie
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hi everyone, im looking for some help, sorry.

 

i would like to know what you would class as gross misconduct within a childcare setting, as i need to know if this is what im dealing with but dont want to give too much of a scenario in case it is recognised!

 

thanks in advance for your thoughts,

 

ok just to add, ive been looking on acas and it says that a person can be dismissed because of 'their capability to do the job' or 'because a restriction prohibited the employment continuing'.

our ofted inspector said that she was incompetent in her position, and there is no other position for her bc we are a small team, is this then grounds for dismissal.

 

p.s. this is both as well as and in conjunction with the first point!

 

hope someone can help

lucie x

Edited by Lucie
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Hi - I would say any inappropriate behaviour in any form towards a child in your care iin respect of the care standards we are currently working with and also a child's education needs. Your policies may well help you make the decision as to whether your issues are gross misconduct or not.

 

Rather not be in your shoes though - good luck Dot

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gross misconduct can be quite a few things some of the main ones would be endangering or harming a child, theft, criminal activity, drug use/abuse, conviction for assault or assault on a staff member, willingly refusing to carry out their duites. The list can get quite extensive and some things can be classed as gross misconduct by one person and not by another. Good Luck with your problem

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Hi again - just read the next bit - are you a member of the pla - they may well be able to advise re any implications as employment law does follow a certain procedure. Dot

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As already said, gross misconduct could be anything from stealing or arriving drunk for work! Hitting or otherwise mistreating children would obviously fall into that category too.

 

I did some ACAS training a while back and we talked about the processes employers should go through before dismissing an employee. We were told that good practice would be for employers to identify areas of concern about an employee's practice, discuss with the employee about what they need to do to improve and agree regular review dates to monitor their progress.

 

Were you concerned about this employee before Mrs Ofsted made her pronouncement about her suitability - and if so have you documented your discussions with the employee about their weaknesses? Did you get a poor Ofsted report? If so, and you then fire this person, I'm worried that she might take you to an industrial tribunal claiming unfair dismissal - especially if you haven't raised concerns before.

 

I would ring ACAS and tell them the situation you find yourself in. Their helpline is very.... well helpful! They say their mission is to prevent employers being taken to a tribunal and will give you advice about what to do and how to proceed.

 

Good luck!

 

Maz

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Agree with Happymaz, talk to acas or PLA for 'specific' advice, you can discuss this individual persons behaviour to see if it is gross misconduct or not.

Look at policies, look at contracts of employment, what is required of this person, also what training, if any, the preschool, as an employer, has included as will be provided, in the contract. Has proper induction, in service training etc taken place? if yes, has it been recorded and signed as understood by the employee?. make sure all avenues are covered, check this out by talking with acas / pla or other professional advisors.

 

Good luck, hope it all works out for the best for yourselves, the preschool and the employee.

 

 

Peggy

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At the feedback meeting, I was told that this particular person can no longer be deputy. We only have 2 staff members per night and its only a 16hr week as it is. I cant see a possibility of being able to employ her, and being able to recruit a new deputy.

Now what am i supposed to do.

 

Yes there were small concerns before, and she had had a verbal warning the previous week.

We got inadequate from ofsted with action, which is fine as the points raised were easily changeable.

Mrs O said she left a room full of children (leaving just mrs o in the room), stated that she wouldnt make a child protection referal (bc she doesnt like the system).

Shes been with us 4months, and during probation came out fine, but i expected improvement, but instead she seems to be going downhill, no matter how many discussions we have.

I havent taken things further than verbal warning.

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Hi,

 

You must detail in your staff policy what constitutes gross misconduct quite specifically - what constitutes gross misconduct in a setting with children is different to say an office environment. If you have given a verbal and a written warning they must be for the same thing before before you can tell her to go eg if you gave her a warning for being late the written warning would have to be for the same thing. However, the good news is that if she has not been employed for a year and you have in your contract 4 weeks notice both for her and you, then you can give her notice without it ending up in a tribunal. There was something in the news recently about a practitioner who slapped a child and sued for unfair dismissal and won because it was not deemed to be gross misconduct. Agree that ACAS gives sound advice.

Good luck!

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I am presuming that you mean at the Ofsted feedback meeting the Ofsted Inspector told you that this person can no longer be deputy. Did Ofsted make this comment an action? To demote or sack this person? ( or maybe they didn't give you any instruction on how to make this person 'no longer a deputy'.

 

I would contact Ofsted and ask for this 'instruction' in writing, mind you I'm not sure whether Ofsted have a right to tell a setting what position staff hold, however, I would think the indication is that this person was observed as not fulfilling National standards and is therefore not suitable for a manager role ( albeit deputy). Phone Ofsted for advice, see if you can speak to the Inspector who did your Inspection, or leave her a message asking her to clarify what is required of you regarding this persons position, and under what national standards ( may be child protection or suitable person or both).

 

I just wonder if you give this person a warning on what the Inspector said, then the Inspector deny's or doesn't back up your reason for a 'warning' or dismissal, it might cause complications. Normally if someone has done something classed as 'gross misconduct' it would be the responsibility of the employer to deal with it immediately, it could be argued that if the employer doesn't know what defines gross misconduct then how could the employer expect a member of staff to know.

 

This doesn't mean this cannot be handled now, contracts should state employees are required to work within the requirements of the National Standards, and I would quote these rather than the ambiguous gross misconduct term, in any future warnings this employee is given.

 

Good luck.

 

 

Peggy

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Peggy, thats excellent advice thankyou so much.

 

What would everyone do, we only have two members of staff per session, manager and deputy mostly. If she cant be deputy, we dont have other hours for her. But we still need to take someone on to be the deputy in her place, does that make sense.

 

I will ring acas in the morning for advice.

 

Thankyou for being excellent with my problems!

 

xx

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What is her contract for?

Does it state for just deputy, or any staff member?

Would take advice about as she is not suitable for post of deputy and if that is her contract , then is she is really able to stay in post? particularly as you will have to employ a suitable person as deputy. (maybe she would not want to stay if someone else has to be employed 'over her' aqnd she would essentially be demoted.)

 

not worded it correctly but hope it makes sense.

 

Inge

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Thanks Inge, it does say deputy.

If it is not possible to dismiss her we would have to decrease her hours dramatically and she would have to take a pay decrease as she is on deputy pay at the mo, but would have to be reduced to playworker. I dont even know if i can do that, ive never dealt with this as a manager before, and neither has committee so we're a little in the dark!

 

thanks again for the help

 

lucie x

Edited by Lucie
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Not been there myself either , but understand the problem..

 

Logically there is no way she can stay in the job , if O say she is unsuitable there is no option as it would affect your registration to do so..

 

Take Further advice to know exactly where you stand.. thing to also consider is do you have to demote and employ her or is it just a case of being unsuitable for the post applied for so terminating contract.... if she does stay would suggest doing appraisals and probationary period as it will be a new contract .

 

we occasionally do fixed term contracts for people we are unsure of, for a set period of time, they know the contact is only for say 6 months and the contract terminates at the end of that period. Our probationary period is also 6 months with mini appraisal after 3 months to see if there are any problems that could be rectified, before end of period.

 

Inge

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Thank you everyone fpr your sound advice.

I have taken advice from ACAS, who have assured me that there is grounds for dismissal because she is not competent in her position. We have to give the contracted amount of notice, which is 4weeks :o

Now we have the very very difficult task of recruiting a new qualified deputy, oh dear! xD

 

Thanks again.

 

Lucie xx

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