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Think this is going to end badly

(60 Posts)
Photoseverywhere Sat 13-Oct-12 09:04:05

My boss has just given me a new contract to sign as current charge has now gone to school, I've put the whole sorry saga in Employment issues I was told that I would not be on call during the day when my charge was at school and that I would not be working school holidays. I was also encouraged to get another job that fitted in with this ie during school hours only. I was also told I could claim Time of in Lieu. Last week I told her I was not available for an INSET day as I had plans and also told her I was owed a certain number of hours of in lieu for overtime worked.

Last night she gave me my new contract

“Your employers normal days of work are M-F for 50 hours. Your normal days of work are M-F for 25 hours. You may be required to work such additional hours as are reasonably necessary for the proper performance of your duties and meeting the needs of the family. Extra payment will not be made for any additional hours worked”

"Your employer has the right to vary your working hours and days in accordance with the family needs”

I don't want to sign it. Which means effectively I am handing in my notice of 4 weeks... this is going to end so badly sad My other issue is I am supposed to be doing 3 weeks proxy parenting and now that shes turned round like this I don't want to sad

I am a live in nanny so effectively when I hand in my notice on Monday (unless she says something over the weekend) then I am making myself homeless and will have no job.

Sorry for venting I just feel like my backs up against a wall.

Brycie Sat 13-Oct-12 11:19:16

In other words, don't sign, don't resign, don't make yourself homeless. Drag it out, negotiate, stay on good terms, decide what you want. Most importantly - a roof over your head, and a reference. Remember being under her feet gives you the power of requiring a good reference to get rid of you.

Lougle Sat 13-Oct-12 11:19:22

Just to correct that, MrAnchovy - although the minimum period of employment is 2 years as of April 2012, if the contract commenced before April 2012, the minimum period remains unchanged at 1 year so if all other conditions are satisfied, the OP would still have a claim.

MrAnchovy Sat 13-Oct-12 11:24:08

Thanks Lougle, you are absolutely right regarding unfair dismissal. The qualifying period for redundancy pay is 2 years regardless of when employment commenced however.

MrAnchovy Sat 13-Oct-12 11:39:00

"Either you or your employer might want to change your employment contract. However, neither you or your employer can change your employment contract without each other's agreement." (ex. Business Link)

That's all very well Brycie, but if you don't agree to a change the employer can terminate the existing contract by giving notice. Even if this was judged to be unfair dismissal (and in this case there may be an argument of unfairness in relation to the National Minimum Wage and Working Time Regulations) the compensation would be minimal, and taking a previous employer to an Employment Tribunal never looks good on a CV sad

Brycie Sat 13-Oct-12 11:48:31

I took it from the direct gov website, is that the same thing?!

Anyway, the legalities are partly on the nanny's side, that's what's important. At the moment she's faced with a fait accompli, and she thinks all the power is on the employer's side. She needs to know it's not like that.

She needs to know that she doesn't have to sign it, and that if she's fired, she can bring an unfair dismissal claim. It doesn't matter what the result will be, in a way - it's the fact that it's unfair dismissal, legal costs, compensation outcome uncertain etc - does the employer want to go through with that? No, probably not. It will give her pause, give the nanny time to negotiate, find a new job, not lose her home, whatever.

Does the nanny want to go through that? probably not, but that's not the point. She could, and that gives her a bit of power which she's in dire need of right now. Not signing, and not resigning, puts the ball back in the employers' court and a good thing too. That means she'll have to decide - do I want to sack her, risk unfair dismissal, struggle to find new help etc or do I negotiate the terms of the contract?

All this time the nanny can be looking for a new job and still has a roof over her head. Unfair dismissal is a fair cop because the employer has offered her continued employment so any complaints about performance would be seen to be made up and false.

Nanny photos I think you need to start making notes, photocopy the contract and start thinking about what you want if the terms of the contract were open to renegotiation. Or a new job.

MrAnchovy Sat 13-Oct-12 12:18:02

@Brycie

Oops yes, DirectGov.

I see what you mean about presenting a balance of information, but I don't agree that the employee is a very strong position here, and I do think that the best that is going to come out of it is a good reference and jeapordising that by threatening/hinting at a Tribunal would be a mistake.

"Unfair dismissal is a fair cop because the employer has offered her continued employment so any complaints about performance would be seen to be made up and false."

But the reason the employer would give for dismissal wouldn't be performance, it would be that the employee is unwilling to meet the changed needs of the employer. That doesn't mean that the dismissal would definately not be unfair (indeed if the Working Time Regulations are being breached it may automatically be unfair), but it is certainly not a "fair cop" against the employer.

Brycie Sat 13-Oct-12 12:40:32

Yes I agree and you definitely know more about Working Time reguatlions than me.

But I don't think the employee would even have to HINT at a tribunal. It's already in the employers' mind. All she has to do is smile sweetly, ask for more time, and the employer will already be thinking about the next step.

This is going to be a slightly dog eat dog situation with both dogs smiling and wagging and both working out how they can each get the best out of the situation.

Unless the nanny really doesn't want the hassle, which would be quite natural, and she's got the money to spare and can just walk. I wouldn't do it but I can see how that's appealing.

nannynick Sat 13-Oct-12 12:45:46

I agree MrA, the outcome the nanny needs here is a good reference and time to find another job.
Why couldn't the nanny say they won't agree to change to contract and let their employer give notice ti terminate the contract. Woukd that work? Better than nanny resigning.

Photoseverywhere Sat 13-Oct-12 13:33:46

Hi I'm back - my thoughts are that I tell her on Monday that I don't agree to the terms she said that we agreed them in a meeting but this being on call for any hours whenever for no payment - we said that I would have the occassional overnight and that I would get TOIL...

So I tell her I don't agree to the terms
Then she will say "someone else will sign that contract" which she hinted to when I didn't sign the new one which had errors in
I then ask if thats what she wants and offer my 4 week resignation there and then - but saying that I will only work the 25 hours a week that I am employed to do so - ie no overnights, no extra hours and the 3 week course she wants to go on is a NO NO.

Thoughts?

JustSpiro Sat 13-Oct-12 13:51:26

Is she expecting you to sign this over the weekend and give it back more or les immediately? Has she said as much?

I'm just wondering if it's worth ringing round a few employment lawyers to see if any of them do a free half hour and you could get some concrete advice before making a decision.

Re the INSET day - did you have notice of that? I must admit that in your situation I would expect to be providing childcare on those days unless I'd been told otherwise.

The rest of it sounds totally unreasonable and I think if necessary I would just go with the line that I needed a more structured/straightforward set up from both a financial and personal POV.

Photoseverywhere Sat 13-Oct-12 13:59:18

Justspiro - I was told I would not be on call during school hours, I would not work school holidays etc and would only work 7.15-8.45 and 3.15-5.30. She told me I could get a job during school hours - therefore how am I supposed to cover inset days if I have another job that she agreed I should take on?

I imagine she wants it signed asap - she will know I am stalling.

fraktion Sat 13-Oct-12 14:06:35

I second the advice to seek further advice. A lot will depend on the wording of your contract given what you said on the other thread.

Is NCMA who you have your insurance through? Did you speak to the insurer's legal team? I've heard the standard helplines aren't that great for nannies as the organisation is set up primarily for CMs who obviously don't have the same nitty gritty employment law issues.

I would not sign that contract as it stands.

fraktion Sat 13-Oct-12 14:07:36

Also I suspect she is trying to make you resign so you can be replaced with an au pair. She may have been advised that your previous employment puts you in the running for redundancy payment so she doesn't want to actually make you redundant.

Brycie Sat 13-Oct-12 14:08:39

On Monday just say that you need more time to think. That's all.

nannynick Sat 13-Oct-12 14:12:40

I don't feel you should resign. She should give you notice that the contract is ending.
I think that if you resign then you can't claim job seekers allowance for a while - anyone know thecurrent JSA entitlement rules.

Brycie Sat 13-Oct-12 14:14:49

Photos, it doesn't matter if she knows you're stalling, what's she going to do about it?

Photoseverywhere Sat 13-Oct-12 14:18:13

But essentially regardless of whether I sign it or not - it will stand she will continue to work overtime and I will continue not to be paid for it.

JustSpiro Sat 13-Oct-12 14:23:37

So the implication was that your employer would take time off for INSET's, the, which is fair enough.

It sounds like a tricky situation to work round anyway.

Your employers normal days of work are M-F for 50 hours. Your normal days of work are M-F for 25 hours. You may be required to work such additional hours as are reasonably necessary for the proper performance of your duties and meeting the needs of the family. Extra payment will not be made for any additional hours worked

Your employer has the right to vary your working hours and days in accordance with the family needs

Assuming you did want to try and work it out (if only to give you a bit of breathing space to find something rather than having to rush it).

Where are they getting 25 hours pw from? The hours you mention above total 18.75 so that would need addressing (unless that included some weekend/evening work - but I'd ask them to be more specific)

Additional hours - you said you'd agreed to TOIL for those. I think they need to give you an idea (and you them) of what would be considered reasonable. 3 or 4 hours a week that you take of as TOIL is one thing, expecting you to be in charge pretty much 24/7 unpaid is unreasonable - quite apart from anything else how could you ever recoup that in TOIL? So perhaps a clause stating that 'up to x hours a week as TOIL and anything in excess of that paid at an hourly rate of £X.'

Right to vary your working hours - ok, but how much notice do they have to give you of this? Will this apply to occasional temporary changes or just big, permanent ones such as the current situation, in which case a different notice period might be required (i.e. 48 hours min for occasional, 4 weeks for l/t permanent changes).

It's a lot of work and aggro if you're already not happy and your boss is not the most reasonable person in the world. Worst case scenario would agency work be an option for you until you find something permanent?

Brycie Sat 13-Oct-12 14:24:22

Firstly, she can't legally pay you less as you are under contract. Secondly, if she's going to unilaterally start paying you less then your job at that place is over, and the question is, do you want to find a flatshare - given you might get a live-in job - or do you want to stay where you are and use your free hours during the day to find a new job.

Brycie Sat 13-Oct-12 14:27:27

If you have a good reference I don't think you'll find it hard to get a new job. You need maybe two months - I don't think being thrown out and having to flat hunt at the same time will help.

Photoseverywhere Sat 13-Oct-12 15:31:52

So keep quiet, make her write me a reference, look for a job whilst staying here.

She said I would only be working 18.75 hours but be paid for 25 - so I made the descision to work the 7.15-9.30 2.30-5.30 so that she couldn't turn round at any time and say I was paid 7 hours more than I worked - also means I have time to do nursery duties etc.

JustSpidero Sat 13-Oct-12 15:59:30

You said you're at Uni - would they be able to help with accommodation under the circumstances, either halls or lists of local rooms/flatshares? Do they have any nursery/crèche facilities that are recruiting?

I think it's worth trying to hang in there if you can, but if it's going to be causing regular issues because your employer is taking the mick or pressuring you re the new contract I can see why you'd want to get out sooner.

RandomMess Sat 13-Oct-12 16:04:27

Could you ask her to consider some sort of flexi time sheet, I would consider the contract, give her lots of options and compromises to look at and ask for a meeting to discuss it again in a weeks time wink

You can stall while trying to negotiate and come to an agreement, such as suggested by JustSpiro. Could you see if you were able to find a nursery shift in those hours? It might be easier to find a job later on, either in that nursery or otherwise if you are employed. That might solve the reference issues, as your boss has already suggested you find a job. She would obviously not mind you finding a job in those hours. Whether it be in a nursery, or as a live out nanny with another family.

juneau Sat 13-Oct-12 16:10:48

I would get an employment lawyer to look it over and give you advice. If it was me, I'd probably tell her that's what I was doing too and that's why I need more time. She sounds like a bully.

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