Information Note to Members

A number of groups have asked that educators and providers collaborate in coming to a decision about attending the planned protest on 5 February. The protest is on a normal working day and while some providers may choose to close and attend, some may not. Others may agree to their staff attending, but again others may not. Every provider should decide for themselves what they will do on the day.

What should you do?

Some members have already been in touch to tease out their own approach to the event.
There are a range of interlocking factors that you need to consider. These include:
• Whether you and/or your staff can take time off to attend the event;
• Whether you will have cover for the day;
• Whether you should close for the day;
• How parents will react;
• Whether you will be breaking the terms of your contract (ECCE, etc.) if you close for the event.

We have had specific enquiries from members on this last point. Some members have asked if the clause in their contract that refers to ‘force majeure’ will provide cover for them?

The relevant clause states: –
“The DCYA force majeure policy relates to contractual force majeure (not to be confused with employer force majeure) i.e. where a service provider is hindered or prevented by circumstances not within its reasonable ability to control, including but not limited to, acts of God, inclement weather, flood, lightning, fire, trade disputes, strikes, lockouts, acts of terrorism, war, military operations, acts or omissions of third parties for whom the Affected Party is not responsible (“Force Majeure”) from performing any of its obligations under this Agreement, the Affected Party shall be relieved of liability for failure to perform such obligations.”

We are not in a position to provide definitive legal advice. We would advise members to consider the above definition very carefully and to seek further guidance from their CCC or Pobal. 

In relation to the contract payment, we have asked the DCYA to provide clarity on this point. 

Here are some further Questions and Answers that you might find useful:

Should I close my setting?

There is no one answer, it is a matter of choice.

You may choose to close your setting on the day and if applicable, rearrange your ECCE calendar with your local CCC in order to participate. You will need to consider if you will refund parents for the day where you provide part-time or full-time care.

You may decide to let one or two staff attend the event and stay open where you are in a position to arrange relief cover for the day. It is worth remembering that the regulations apply as usual, including maintaining ratios and ensuring that all relief staff are Garda-vetted and qualified.

Or you may choose to operate as normal.

What should you tell staff who have informed you of their intention to attend the protest?

If staff tell you that they want to attend the protest, you may decide to come to an arrangement with them.

It will obviously lead to a happier workplace if you and your staff come to an agreement about attendance at the event, but that may not be possible. Some options that may help:
• Staff may decide to take the day as a day’s holiday;
• If you rearrange your ECCE calendar that might also facilitate staff who wish to attend;
• You may want to pay staff attending the event, but you have no obligation to do so.

Members should note that the employment law force majeure measures do not apply in these circumstances. Force Majeure in that context occurs where for urgent family reasons owing to illness or injury the immediate presence of the employee is required where the injured/ill person is. So, if a staff member of a setting is seeking to use force majeure as they need leave because their own childcare arrangements are impacted by the protest, then members can refuse as the matter is not urgent (in that they have advance notice) and there is not an illness or injury. In such circumstances, annual or unpaid leave should be used.

As you can see, there is no definitive advice, given that there are likely to be different circumstances for different settings. But we would urge you to try to come to some form of arrangement with staff, if that is possible. You also need to bear in mind that whatever approach you do choose to take it must be applied fairly and consistently with all staff.

It is worthwhile being clear that this is a protest and is not strike action within the legal definition. Therefore, the legal protections under the industrial relations acts do not apply and it is important that staff members are clear about that. If they are members of the Union, then they should seek clarification on that from their local union representative.

What should you tell parents, and when?

We advise that you talk to parents as soon as possible.

If you plan to close your setting or reduce the number of children who will be able to attend on the day, you should communicate this promptly to parents. They will need to make alternative arrangements and are likely to appreciate if you talk them through the situation. As parents may already be aware of a planned protest, it would be advisable to inform them if you are not planning to close your setting.

Given that settings will be in a variety of circumstances or if you have specific scenario you need to discuss, please contact the EYES team for further guidance on (01) 405 7103 or eyes@earlychildhoodireland.ie. Alternatively please enter a query through the form below: 

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