Final written warning

[Sterling]

Hello. I write on behalf of my 19 year old granddaughter.
She left college last year and started work in September 2023 as a Nursery Apprentice in a privately run (registered as a charity) children's day nursery. Without going into detail, there was an incident with a child which has resulted, after a disciplinary hearing, in her receiving a final written warning for gross misconduct which will remain on her file for 12 months. The whole thing has been concocted to appease the child's parent who is on the nursery committee and she has well and truly been 'thrown under the bus' She is not in a union.
She has given notice of appeal but no appeal date has been set as yet.
My understanding is that she does not have a leg to stand on due to less than 2 years in the job, should the appeal fail and they decide to dismiss her then the gross misconduct will be registered on her DBS file.
My question is: If she resigns before the appeal hearing, can her employer still register the gross misconduct on her DBS file or will it remain within the nursery setting.
Many thanks.

[ULA]

If they have already held a disciplinary hearing and the outcome was to issue your grand-daughter with a final warning, if she appeals the decision against this level of action as being too severe, they are highly unlikely in an appeal meeting to dismiss her for gross misconduct.

If she does decide to leave then a basic DBS check is a criminal record check which details convictions and conditional cautions considered to be ‘unspent’ under the terms of the Rehabilitation of Offenders Act 1974. This situation will not apply as she has already been DBS checked..

However, if your grand-daughter continues to work with children it is highly likely they will to an Enhanced DBS which will contain the same information as a basic DBS. This can include referrals made to DBS when for example, an employer or organisation believes a person has caused harm or poses a future risk of harm to vulnerable groups, including children. This would then become the decision of the employer based on the incident.

The above being said on Enhanced DBS checks, my view is that if the incident was that serious the employer felt it should be referred to DBS, then the likely outcome of the disciplinary would have been your grand-daughter's dismissal for gross misconduct and not a final written warning.

[Sterling]

Thank you for your response ULA.

My granddaughter has been offered an Apprentice position at another nursery but we do not know which way she should go with the present situation. I have spoken to several people involved in childcare, and they have all said that the incident was trivial and at worst the result of the complaint should have been further training.

This complaint by the child's mother was the fourth, but the first involving my granddaughter, that this particular parent has made to the nursery regarding their child, it would appear that she is carrying the can for the nursery's previous failings with this child. (and to appease the child's father who is on the committee)

As stated she has given them notice of appeal, but we are having a problem finding someone to represent her at the appeal hearing as she is not a union member. She can have a work colleague with her but the only one she trusts is the same one who accompanied her to the disciplinary hearing and they are both as 'green' as each other and would not be able to stand their ground.

Working with children has long been her goal and she wants to continue doing so. Whatever the result of this she does not want to continue working there after the way she has been treated. If she goes to appeal and loses (I cannot see them backing down) then its back to square one, so if she resigns now or waits till after the appeal what is the difference.

I take your point about if the nursery thought it was that serious then she would have been dismissed, but if they decide to be malicious about it and end up referring to the DBS then could you advise what opportunity my granddaughter would have to put her case to the DBS.

Again, thank you.

[ULA]

Unless there are special circumstances, which are limited then it would only be a trade union rep or a work colleague who can attend. It may just be this other person is there as moral support for your grand-daughter and to take notes.

Given what you have said about the incident I am not sure it would meet the criteria for a referral being made which I have set out below:

Referrals should only be made to the DBS when an organisation has permanently removed a person from regulated activity, such as a dismissal. The referrer must believe that the person has:

1. Engaged in relevant misconduct (harmed or placed a child/vulnerable adult at risk of harm); or.
2. Satisfied the harm test (that no harm has been done, but that the risk of harm is significant); or
3. Received a criminal caution or conviction for a relevant criminal offence.

The organisation has to fully investigate the allegations and only make a referral to the DBS where there is evidence that there is genuine merit to the allegations. It does not seem that in this case they would be able to substantiate this.