A number or providers have raised a concern regarding staff not having completed the Level 5 Early Childhood Care and Education qualification by December 2016. The indication is that they will not have their QQI level 5 completed until April/May 2017.
The Child Care Act 1991 [Early Years Services] Regulations 2016 are clear that “on or after 31st December 2016 each employee working directly with children attending the service holds at least a major award in Early Childhood Care and Education at Level 5 on the National Qualifications Framework or a qualification deemed by the Minister to be equivalent”. In the event that an employee has a grandfathering agreement and is in possession of a letter from the Minister confirming that then the above situation regarding holding a Level 5 minimum qualification does not apply.
Therefore it is clear that those staff who do not hold a QQI Level 5 award will not be eligible to work directly with the children when they return from Christmas leave in January 2017. At this point, it is essential that employers communicate with those staff members in relation to the implications of their not being eligible to work directly with children from that date.
The following presents some suggestions as to how the situation may be responded to. It is important to note that each individual employment is different and a particular agreement with one employee may not necessarily apply or be acceptable to another employee.
What is really important is that there is clear communication, of which a written record should be kept, signed off by both parties, the employer and the employee.
- Is it possible to offer an alternative employment in the service to the employee while they complete their QQI Level 5 qualification?
- Is there a cook, administration, cleaner role where the staff member may not be working directly with the children but could remain in employment even if the hours of work are not the same? It could be seen as an alternative position for the period until such time as they successfully hold a QQI Level 5 in Early Childhood Care and Education.
- Review employees’ contracts to see if they include a clause regarding “lay-off”
- If they do it may be possible to agree with the employee that they are laid off work from January 2017 until such time as they have successfully hold a QQI Level 5 qualification.
- Even if there is no ‘lay-off’ clause in the contract this option could potentially be negotiated with the employee.
- Usual practice when employees are laid off is that they can apply to the Department of Social Welfare [DSW] for payment.
- This is however, an unusual situation, and it may be advisable for an employer to check with their local social welfare office to ascertain if the employee would be entitled to claim social welfare for this duration.
- In undertaking a lay off situation this links to Section 12 of the Redundancy Payments Acts, 1967-2014. The lay-off must be temporary and the employer must notify the employee prior to the lay-off. This is usually done by completing Part A of an RP9 form.
- An employee who is laid off may claim a redundancy payment if the lay-off exists and has continued for 4 weeks consecutive weeks or more. An employer may give a counter notice within to confirm that within 4 weeks of the date of claim of the redundancy they will be able to give the employee not less than 13 weeks work without lay off.
- The difficulty for the employer is that using the above scenario the employee will be laid off from January to April/May 2017.
- If the application of the Redundancy Payments Acts, 1967-2104 was applied an employer may have to pay a redundancy payment to their employee.
- The approval of payment from the DSW during a lay-off period is also off relevance in this situation. The DSW may not view the lay-off as a true lay off situation as some employers will have to seek a qualified staff member to provide cover for the duration of the lay-off.
In the event that the DSW does not approve payment for lay-off the employee may have to be placed on administration leave on an non pay basis until such time as they hold a QQI Level 5 qualification.
In the event that a redundancy situation arises, the employer should explore all alternatives to redundancy with the employee and in the event that no satisfactory alternative can be found, the employer should discuss with the employee the fact the employee is not sufficiently qualified to carry out the job in future. The issue is not the personal ability of the employee but the qualitative nature of the role they perform.
Therefore, employers should meet with effected employees and agree how they are going to deal with this situation as they will not be able to employ the employee with effect from January 2017 as the employee is not qualified to work directly with children under the Child Care Act 1991 [Early Years Services] Regulations 2016. It also will have implications for employers who may have to source temporary staff to cover this situation. This information should be conveyed to employees as soon as possible.
Please note that the information above is relating to an employee holding a QQI Level 5 qualification by the end of May 2017.
This is not specific legal advice but a generic information note as every case is different. It is advisable to seek further advice if necessary. As you know we have a HR/Legal team here at Canavan Byrne