Guest Posted July 15, 2011 Share Posted July 15, 2011 What a day! Wonder if anyone has experience of dismissing staff member for gross misconduct. I have today suspended a staff member, pending investigation. Whilst investigating a parental complaint relating to performance it has come to my attention that a senior member of staff has seriously breached late collection and safeguarding policies. I am aware of my disciplinary procedures and know the steps I have to take. It states the standard gross misconduct examples such as theft, violence etc. To my mind compromising the safety of a child in the way she has IS gross misconduct but am struggling to find examples of this anywhere. Been one hell of a day and am wonderring if anyone has experience they could share? x Quote Link to comment Share on other sites More sharing options...
HappyMaz Posted July 15, 2011 Share Posted July 15, 2011 Presumably your safeguarding/child protection policy has information about how complaints against a member of staff will be handled. I think (although obviously I'm not an employment specialist) that you need to follow this procedure to the letter both in order to ensure the complaint is effectively investigated, but also to show that this employee has been fairly treated. Good luck - this sounds like a very difficult situation. Quote Link to comment Share on other sites More sharing options...
Guest Posted July 15, 2011 Share Posted July 15, 2011 It does yes, but in relation to allegations. In this case (prior complaint aside) I guess the complaint is coming from me in relation to the breach of safeguarding policy, which somehow isn't specifically covered. It is covered through the job description etc that all staff must adhere to policies and in this instance policy clearly states that what has happened must not happen, if you get my drift! What gets me is that this is an experienced staff member whol is fully aware of our procedures and although I am certain that the child was not actually at risk of harm the potential is really there. Started my day with losing new supervisor due to start sep and ended with suspending someone else! With hindsight I should deffinately have stayed in bed today! Quote Link to comment Share on other sites More sharing options...
HappyMaz Posted July 15, 2011 Share Posted July 15, 2011 although I am certain that the child was not actually at risk of harm the potential is really there. So could the member of staff argue that, having considered the policy she felt the child was not at risk of harm, thus justifying the way she acted? I'm playing devil's advocate really, but when I think of gross misconduct I do think of those black and white things: a staff member steals money from the setting, perhaps. No justification for what s/he did - it was wrong and clearly against the law. I think once personal judgement becomes part of the scenario it is more difficult to say something is gross misconduct - things get very grey and murky. I think if I was in your shoes I would ring my LA advisory team for urgent advice on Monday. This definitely needs a more experienced and knowledeable head than mine! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 15, 2011 Share Posted July 15, 2011 Did so today before taking initial action, after discussing she asked if, as manager, I felt confident that this person was 'suitable' to safeguard children and follow procedures in my abscence, in light of events I had to say no and put in immediate cover. I appreciate you playing that part as is what I need to think about all options. She did counter with her personal take. The situation is that a child was cared for by her alone in setting time.........I can't help feeling that is a basic no-no and clearly covered across more than one area................. Quote Link to comment Share on other sites More sharing options...
kristina Posted July 16, 2011 Share Posted July 16, 2011 Are you a member of the PSLA if so give lawcall a call, I recently had to suspend a member of staff and they were really helpful. One thing I would say is as an employer you have very few rights!! As I found out the law is in favour of the employee and we had to reinstate member of staff!! Also if you feel it is a safguarding issue you must inform Ofsted! Kris Quote Link to comment Share on other sites More sharing options...
Rea Posted July 16, 2011 Share Posted July 16, 2011 Can I ask what you mean by "The situation is that a child was cared for by her alone in setting time.........I can't help feeling that is a basic no-no". From reading the first post do you mean a child was late being collected and she was supervising him alone? I'd think first about whether anyone else was able to stay and secondly is it gross misconduct to be alone with a child? She has gone against one of your policy statements but being alone with a child doesnt necessarily lead to dismissal does it? Sorry if I've got the wrong end of the stick. Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 No Rea, not the wrong end. The parent called to advise she would be late and an offer to allow someone else to collect was denied. The other staff member (who is also accountable to a degree) was sent home half an hour before closing and the end of her shift. So what I am trying to work out in my head is if it is gross misconduct or if it should go straight to final warning or demotion..... Your right, the law does favour the employee, but having the responsibility of ensuring suitability of someone manage in my absense, I just don't think I can say this at the moment and am VERY jumpy where OFSTED are concerened. It's the descriptions of misconduct that I am finding hard to apply to a breach in safeguarding policy and in light of events over the last couple of years just feel that this is a high profile area. There were options available to avoid it entirely and I don't understand what went wrong. Quote Link to comment Share on other sites More sharing options...
mundia Posted July 16, 2011 Share Posted July 16, 2011 From the way you have described thus far, it doesn't appear to me to be a dismissable offence, it is something that could potentially happen to any of us especially in an emergency. So, if the other staff member had gone home, half an hour earlier, was that normal? Did the staff member know at that point that the parent was going to be late collecting, and could the other staff member have stayed anyway? Yes she could have agreed to an alternate collector, but was it someone she knew? And would that have still taken time? But as maz said, none of us I don't think are employment experts and you need to take advice on Monday. Then you have covered yourself against any allegation from her that she has been treated unfairly etc. Obviously you have dealt with other issues with this person, and maybe the suspension will either wake her up or lead her to resign. A demotion would be a consideration if there are a series of events where this has been the last straw so to speak. Above all else you need to have everything documented in case she claims unfair dismissal or anything else. Good luck with this, its not an easy situation at all. Quote Link to comment Share on other sites More sharing options...
catma Posted July 16, 2011 Share Posted July 16, 2011 Our LA policy defines gross misconduct as " behaviour or an act that completely undermines the employment contract and relationship(e.g. theft, assault). This is because Gross misconduct goes to the root of the contract such that the council as employer can no longer have any trust and confidence in the employee". Is it misconduct or gross misconduct - From my training breach of policy, rules or procedures and/or unsatisfactory conduct would be misconduct. gross misconduct is defined as misconduct of such a serious nature that the employer can no longer tolerate the employee's continued presence at the place of work. Hope that helps, cx Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 Hi Mundia, and thank you! if the other staff member had gone home, half an hour earlier, was that normal? Did the staff member know at that point that the parent was going to be late collecting, and could the other staff member have stayed anyway? Yes she could have agreed to an alternate collector, but was it someone she knew? And would that have still taken time? It's not normal for one staff member to leave while there are still children in the setting, she did question the decision and could have stayed but it was insisted she left. It was known at this point that the parent would be 10/15 minutes late and was not a problem. The other person to collect was Dad who would have been there in plenty of time. I tend to document any conversation I have these days! I have tried to put in additional support and this is recorded as are all statements, incidents etc. If I'm honest performance has been poor for a while and other members of the team have started to come to me with concerns regarding short fuse with them and the children. The initial complaint at the end of last week is based upon lack of engagement and general attitude and the parent is threatening to withdraw from the club Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 Our LA policy defines gross misconduct as " behaviour or an act that completely undermines the employment contract and relationship(e.g. theft, assault). This is because Gross misconduct goes to the root of the contract such that the council as employer can no longer have any trust and confidence in the employee". Is it misconduct or gross misconduct - From my training breach of policy, rules or procedures and/or unsatisfactory conduct would be misconduct. gross misconduct is defined as misconduct of such a serious nature that the employer can no longer tolerate the employee's continued presence at the place of work. Hope that helps, cx Well my tolerance levels are pretty low at the moment! But that's very helpfull. I would say it is deffinately misconduct, it's the safeguarding element that is clouding the matter for me, yes all the relevant checks are in place for this staff member but we all know how much these really mean. I have yet to have an initial meeting to discuss exactly why this decision was made and I just think it's a strange call to make. At the end of the day there were options available and even if there hadn't of been I would expect a call to clarify the situation with myself. Quote Link to comment Share on other sites More sharing options...
HappyMaz Posted July 16, 2011 Share Posted July 16, 2011 It could be worse, moo20. Back in the bad old days when I'd just taken over as supervisor I was still completing my DPP. So on my day off the previous supervisor was in charge. I came back to work after my college day one week and the owner casually said that there had been an issue with a child whose parent had failed to turn up to collect her at the end of the session. The supervisor had tried to call but got no answer, the emergency contact wasn't answering the 'phone either. Supervisor's child was due to come out of school, and she knew the child's mother would be at school to pick up her sibling. So the supervisor decided to send the rest of the team home, put this child in her own car and drove her to school and waited in the playground for mum to arrive. No call to the owner to get advice, no consulting the child protection/late collection procedure policies to see what to do, she just did what she thought was logical in the circumstances. As it turned out, it was fine - mum appeared in the playground, saw her child standing there and was mortified that she had forgotten to pick her up. But when you think of what might have happened... Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 HappyMaz, I kid you not, last year the EX supervisor did the exact thing but delivered the child home! She did have a call from the parent to say she'd be late and offered this additional service! No business insurance but did at least have another team member in the car too. Now this staff member was very vocal about the unjust treatment she received as a result, actions were put in place, policies reviewed as a team and meetings were held to discuss!!! Therefore, one would think that maybe this would come to mind! P.S. Same bloody child too!!!!! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 Update; Just spoken to ACAS, they really are lovely. Basically gross misconduct is determined by the employer and can be any action that destroys the relationship between employer and employee. In this case waters are mudied by the safeguarding element, low and behold OFSTED don't work weekends! If gross misconduct can be justified dismisal is an option depending on the employees reasons for action. If it is decided this falls short of gross it is deemed misconduct and can result in demotion etc. In my view, prior to investigation, am still uncertain until I know what led to the decision being made. I do feel for certain though that as a supervisor this person can't be trusted to make the right decisions or seek advice if unsure. Great end of year, it's not like I have anything else to do anyway!!!!!! Quote Link to comment Share on other sites More sharing options...
suebear Posted July 16, 2011 Share Posted July 16, 2011 EYFS states there must be two appropriate adults on the premises at all times; a child should never be at the setting completely alone on a 1:1. I suppose the misconduct falls into what choice did the member of staff have to remedy/prevent the situation Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 As a childminder some of this baffles me - we are always on our own with children, and quite often drive them in our cars (with business insurance). Quote Link to comment Share on other sites More sharing options...
Fredbear Posted July 16, 2011 Share Posted July 16, 2011 Hi i am baffled to as you say the other alternative adult that would have been able to collect on time was infact the dad. Was this refused as the practitioner had not met him? if yes, we have a password code for any person not been introduced to us but this would only be used in an emergency. So the parent rings to say they cannot collect, neither can anyone listed on the personal details forms, but they are giving permission for !!!!!! to collect, they give us a unique password to them, then the adult has to give us this same password when they arrive. Obviously this will only work if the person on the phone is recognisable to you, as this could be seen as a safeguarding issue in itself. Have to say it is a golden rule that no member of staff is ever left on there own with a child under any circumstances. This not only protects the child but the adult too. This must be a nightmare for you, but hoping you get the support you need to make the right decisions. Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 It does Suebear and way pre-dates the EYFS. Lolo, I know what you mean, are the checks you undergo different? I know notifications vary for childminders.... The member of staff does know dad, we all do and we do have a passwaord system in case of emergencies. And it really is a golden rule, I recall occasions with this staff member where we have implemented late collection procedures, it's not like she isn't aware. I have cleaned the house to within an inch of it's life all day long (helps me process things I think)! Will have to wait until all statements are in on monday and hold hearing to discover why this happened but ultimately I do feel this was a serious misjudgement and how can I trust this person is 'suitable' to run the setting in my absense? Going to be a difficult week but thank you all so much for helping me think/type things through x Quote Link to comment Share on other sites More sharing options...
diesel10 Posted July 16, 2011 Share Posted July 16, 2011 Hi Reads as though there is a big training need here. But also reads a bit weird, as though she put herself in the position to be alone????? Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 That's the thing though, there isn't a need for training! This is an experienced, if sometimes tricky, team member with a sound safeguarding knowledge and is fully aware of practice and policy. Is doing my head in! No point trying to second guess I suppose, will be interested in the justification and the grievance being filed!!!!! Oh the joys. Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 I think the difference is with childminders that we have all gone through the equivalent of the suitable person interview, and that we are personally vetted by all the parents too. So the relationship is different. Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 Hmm, maybe so. I hold the same 'suitable person' status, where supervisors are concerned OFSTED rely on me to ensure that my deputys are suitable, which on paper they are, hence the pressure I guess! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 16, 2011 Share Posted July 16, 2011 I agree with diesel 10, it does seem very strange that she chose to put herself in this position! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 17, 2011 Share Posted July 17, 2011 Why wouldn't she agree to dad collecting? Especially if he could be there in plenty of time and she knows him? Why did she insist that the other member of staff left early? Especially as they knew at that point that mum would be late? My guess is that she was trying to be helpful, however the not getting dad to collecft has me completely baffled!!! Good luck! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 17, 2011 Share Posted July 17, 2011 You and me both Janny, not comfortable with any of this at all. Best case scenario she was trying to be as helpfull as possible, this has to be my initial train of thought at this stage. She is countering with a grievance against me for not supporting her enough in her role. Last term I worked her asc hours for nothing so we could still afford to pay her for being off after a family trauma, not even a thank you! Am sat here gatherring all my paperwork together, the ammount of work something like this produces is NOT what I need in the last week of term and I've only got 5 days to turn it around! Quote Link to comment Share on other sites More sharing options...
Guest Posted July 18, 2011 Share Posted July 18, 2011 moo20, this is the third time I have been on tonight! How have things gone today? Have been thinking of you, please keep us all updated. Good Luck Quote Link to comment Share on other sites More sharing options...
Guest Posted July 19, 2011 Share Posted July 19, 2011 Hi Debs, SORRY!!! Beach Trip today so not had time to breathe! Not much to add apart from great disprepencies in the statements regarding the series of events, she has failed to mention that mum offered an alternative and other key points so have a series of queries to start with and 'test' integrity if you like. To make matters worse, once mum arrived and saw she had stayed alone she gave her a payment which was accepted! This confounds the matter as far as I'm concerned, such a mess and so much paperwork AGAIN! Making those calls today so will update x Quote Link to comment Share on other sites More sharing options...
HoneyPancakes Posted July 19, 2011 Share Posted July 19, 2011 I know the situation in Nursery is very different from what we as childminders do, but I think your employee would make a terrific childminder. She has made precisely the decisions I would have made in my setting. Keep costs down, keep the child safe, don't make Dad have to leave work (my assumption), keep the parents happy. I understand the 'what if's' and that it wasn't her job to make those decisions, and that she didn't follow the procedures, but what really happened here? If you really want to come down heavy, counsel her into Childminding where she'll earn much more money and be a real asset to the families she is obviously eager to support. I hope this situation works out well for all concerned, Honey Quote Link to comment Share on other sites More sharing options...
Guest Posted July 19, 2011 Share Posted July 19, 2011 I had the same issue last year when a staff member left another member of staff alone in the setting because it was the end of her shift and knew someone else was on their way. At it was she was walking out as the other staff was walking in but the intent to leave whether or not the staff had arrived on time was obvious. In our policies it clearly states that breaking the requirements of our Ofsted Registration is gross misconduct and as 2 staff with a level 3 and another qualified staff is the minimum requirements it was clear cut for us. As it was new member of staff and a new setting, after much deliberation I gave her a final written warning but helped to have the policy written out with loads of detail. Our policy states that: If, after investigation, it is confirmed that an employee has committed an offence of the following nature (the list is not exhaustive), the normal consequence will be dismissal immediately: theft damage to property fraud physical violence bullying gross insubordination sexualised behaviour verbal aggression incapacity for work due to being under the influence of alcohol or illegal drugs breaking the terms of our registration endangering the safety of the children either through neglect or misconduct Hope this helps?? Quote Link to comment Share on other sites More sharing options...
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