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I am Planning to expand my curent private day care business…

I am Planning to expand...

I am Planning to expand my curent private day care business by offering 3 and 4 year old provision. My nursery is situated in a school building and the school have previoulsy run a maintained nursery class which is now unviable.
The nursery class is staffed by a teacher (who will be retiring) and a nursery nurse.
The school have asked me to TUPE the nursery nurse (she currently earns more than my day care manager and only works 9am-3pm term time only). The salary of this staff member would make the plan financially unviable and as we are going to be open from 7am-6pm all year round the terms and conditions of her contract would not fit the position of room leader for a preschool room in a private nursery. Am I obliged by law to TUPE this member of school staff?

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Answered in 2 hours by:

1/7/2011

Solicitor: Jenny Mackenzie,

replied 12 years ago

Jenny Mackenzie

Category: UK Law

Satisfied Customers: 7,791

Experience: Over 10 years experience in general legal matters

Verified

Hello and welcome to Just Answer, do you know how long the nursery nurse has been employed for?

Customer reply replied 12 years ago

Hi Jenny

The nursery nurse has been in this post for about 3 years but was previously a classroom assistant in the same school.

Solicitor: Jenny Mackenzie,

replied 12 years ago

How are you acquiring the business are you renting the accomodation from the school?

Customer reply replied 12 years ago

Dear XXXXXny

The day care business already exists in the school building and we currently occupy space for full day care, and a before and after school club. (this space is rented through a letting arrangment and with the approval of the LA). The plan is that from Sept 2011 the school would discontinue to have a nursery class. The day care business would then hope to then take over that additional classroom space as a pre school room. We would have to increase the registration numbers in the nursery to accomodate the extra 3 and 4 year olds and increase the rent paid to the school.

Solicitor: Jenny Mackenzie,

replied 12 years ago

so will you be liable for the staffing costs and rent and will you receive the profits of the nursery (just to be clear?)

would you be prepared to take this employee on if her pay was the same as everyone else and she was required to work full time?

Customer reply replied 12 years ago

We would recieve the nursery education funding for any children who attended, we would also have to pay for any staff required, although depending on the pupil numbers I may not need to employ any new staff.

Solicitor: Jenny Mackenzie,

replied 12 years ago

So it may be a redundancy situation in that you may not need a replacement for her? When will you know will it be before or after you have opened the business? will there be a break between you and them running, e.g. over a school holiday period?

Customer reply replied 12 years ago

Sorry I did not respond to your ealier question. - yes I would be prepared to employ her on the same conditions as the other staff and would give her the job without question if we needed her and if her salary could be in line with my other staff. I just cannot afford her on her current terms and conditions.

There will be a break - the school would close the nursery class in July and we would open the preschool room in September. The HR department at the LA have told the school they will not support them if they make the staff member redundant.

Are you suggesting that if I can manage with my current staff team and I am not recruiting someone else that would be OK. (as this is the most likely situation).

Solicitor: Jenny Mackenzie,

replied 12 years ago

Ok if we talk legal position first, this is a TUPE situation and the upshot is that by operation of law when you take over the running of the nursery the employment of the nursery nurse passes to you.

Any dismissal (either by the LEA/school or by you) will be 'in connection with a transfer' and will be automatically unfair.

Obviously this leaves you with an untenable position as far as taking on the nursery is concerned and it is not very 'commercially minded' of the LEA to say that it will not support the school in disimissing the employee.

There are ways round it which are:

a) The school/ Lea could dismiss the member of staff (not likely for above reason) and also the most risky option, unless a compromise agreement is entered into.

b) You could let her transfer and dismiss her by reason of redundancy if you do not need her to work there, you would have to do a redundancy exercise with all of your other staff in order for the dismissal to be fair.

c) you could change her terms and conditions of employment with notice. In TUPE situations you are not allowed to change terms unless there is an ETO 'economical, technical or organisational reason to do so. You clearly have one in your situation.

If I were you I would call a meeting with HR, the school and yourself to discuss these options and be clear that you need 'something ' to happen, if you opt for c you need to consult with her in advance and give notice of the change in terms. She may well opt for a redundancy payment , by way of a compromise agreement as an alternatve to the signficant reduction in benefits she would suffer.

I would be grateful if you would press ACCEPT if you have found my answer useful. I will then leave the question open to answer your follow on questions for free.

Jenny Mackenzie

Category: UK Law

Satisfied Customers: 7,791

Experience: Over 10 years experience in general legal matters

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Customer reply replied 12 years ago

Dear XXXXXny

would it be possible for the day care business start to open the preschool room at a later date (for example in January), the class would already have ceased to function for 5 months at this time.

Solicitor: Jenny Mackenzie,

replied 12 years ago

Yes indeed, this would create a definite redundancy situation, you will have to negotiate with the LEA as to who will pay the redundancy. I would assume that you have a good bargaining position in that they want you to take it on so they may be willing to do so. Your business needs to be named on any compromise agreement she may enter into otherwise she could still bring a claim against you.

Jenny Mackenzie

Category: UK Law

Satisfied Customers: 7,791

Experience: Over 10 years experience in general legal matters

Verified

Jenny Mackenzie and 87 other UK Law Specialists are ready to help you

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