Weathering the storm

The early years sector is no stranger to the “make do and manage” approach – even long before the Covid-19 pandemic, early years setting have been operating under some strain. However, recent months have seen the situation become even more fraught than usual. While in the past providers may have been able to struggle through difficult times, we have seen an increase in the number of settings needing to take significant steps to avoid permanent closure.

Whether its due to a shortage of staff or children, many settings are looking to reduce the number of sessions they offer or even close for a short period. Here are some of the things you will need to consider first…

Temporarily reducing sessions
If you have reduced child numbers on any particular day, you may be able to consider condensing your opening hours until child numbers increase. To apply this to parents, there should be a contractual right to change session hours on notice within your terms and conditions.

Any contracts or registration forms will need to be scrutinised before you make any changes. If you do not have any then you will need to engage with parents and see if they will consent - if parents cannot then the matter becomes significantly more complex. In the event that parents cannot be persuaded to sign new terms and conditions then advice should be sought from Law-Call.

Employees contracts will also need to be changed. Again, it is preferable if you have reserved the right to vary terms and conditions of employment on notice. If not then you must explore whether there is a custom and practice of historically reducing hours in September.

Employers should have a conversation with staff first to explain the dilemma. Where staff are unable to agree to the proposed changes, management will need to contact Law-Call for bespoke advice on potential redundancies or business restructuring.

Temporary closures
Short-term closure may be caused by sickness related absences, an inability to recruit or lessening child numbers. The right to temporarily close will still need to be reserved in a setting’s contract – both with staff and parents.

For staff, the employer should look again at their terms and conditions of employment. Different approaches apply to different reasons for closure. Where there are reduced child numbers forcing closure, then initially look for a right to reduce hours on short notice or to lay off staff temporarily. Guarantee pay is payable if there is a lay off or short-time working – working a shorter week. If there is no lay off clause then management will either have to find the staff work to do or run the risk of paying staff full wages.

If the closure is not unexpected then the employer may have the option of requiring staff to take their annual leave, following notice obligations under the Working Time Regulations.

If staff absences due to Covid-19, or another infectious disease, force closure, then staff who are either sick or isolating should be paid under the setting’s sickness policy.

If management have not already updated their sickness policy, then they should do so. A well-drafted Covid-19 absence policy could require staff who are asymptomatic to stay at home and trigger statutory sick pay, similar to policies for staff with vomiting and diarrhoea.

For staff not isolating or off sick, a lay off clause may need to be triggered, or another work around for them. Otherwise, the employer may need to consider paying them full pay, an additional pressure if a setting has already dug into tits reserves to stay open during lockdowns.

Communicating with parents
Irrespective of the cause of closure, the approach to parents remains key. Specific terms permitting a charge to be levied in a signed contract are required. However, some caution here is needed. While terms and conditions may permit a setting to charge, those terms must be fair, in accordance with the Consumer Rights Act 2015. For example, a few days or a week of closure may be acceptable but a few months will not.