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Never ever employing a nanny again(108 Posts)
I have already posted in legal but would be grateful for some opinions/help from this board.
I've posted about my nanny a number of times and it's safe to say our relationship has completely broken down now.
We have had a nanny for over 2 years. She is looking to leave in September so we agreed leave verbally on an accrued basis rather than yearly. From April to August she has 5 days leave (works 2 days per week, 5.6 weeks pro rata per year).
She has already taken 4 of her 5 days leave. She has a 2 week holiday booked in August, I have agreed to this despite her not having enough leave.
She then asked for a further week unpaid leave. I said no for a number of reasons. She repeatedly asked, I repeatedly said no.
We are now in a stalemate situation where she has categorically said she is taking the extra week leave despite me saying no.
She initially said she may leave as i wouldnt allow the extra holiday but now is saying 'I (employer) need to decide what to do'. I keep repeating the line that I would like her to carry on working for us but can not give her the extra week, I've already given more than she is entitled to etc.
I get the impression she wants to be sacked so she can go to tribunal for cash and she is receiving advice not to leave.
I can't afford to pay her redundancy and don't see why I should when she is making the situation difficult.
So, the advice I need is can I call this gross misconduct on her part and let her go? Or am I in for an expensive and stressful fight?
Do I need to wait until she actually fails to arrive for work before Ican sack her?
I have no doubt she plans to try and get money out of me as she has stated her intention to leave in September anyway, is blatantly telling me she is taking the time off regardless of what I say. Surely you would just leave early in August if you were in her situation?
Anyway this is stressing me out so much, I feel she is just laughing at us and in law can do whatever she likes - someone please tell me this is not so!
Or just a friendly ear will do I've really had enough now!
Use this calculator to work out how much redundancy will be
Is there any chance you were rounding up and she's been there less than 2 years?
Knackered - I'd be furious if an employee spoke to me like that.
I would just send her an email (therefore recorded) stating that you are unable to authorise the leave and if she does not turn up on the stated date you will class that as gross misconduct.
I really wouldn't let it stress you. Have something as back up if she fails to turn up (suss out a few childminders, holiday clubs). She'll need a reference at some point, which you can just refuse to give, maybe then she'll think again about doing it to another employer. If she does ask for one you can just give the standard xxx worked for me from xxxx to xxxx. Please call for further details and then you can give them the details.
The vast majority of nannies are professional - always
1. Pay slightly in arrears
2. Have a clause that states that you can deduct a reasonable amount from their final salary if they fail to fulfil their full notice period to cover for expenses incurred as a result of failing to work their notice period.
Thanks outraged, my son has health problems so ideally we would have another nanny. In that case does that mean I can't make her redundant? If I can't do that what on earth can I do? Just let her do whatever she wants and have to suck it up?
I honestly can't get my head around this. My instinct is to say this is gross misconduct and ask her to leave. I'm fairly sure if I did this at work it would be classed as gross misconduct.
You need a lawyer. I would be asking them all sort of questions as I wouldn't want to leave my DC with someone this unprofessional.
If she has agreed to leave in September and will be away for 2 weeks already in August I would be seeking advice for moving her leave date to July 31st. She can go on holiday on her own time. A month should be enough time to find a replacement. Worst case you could use a CM.
Not seeing where redundancy is coming in here tbh...she wants to leave? So she is resigning
Employees cannot just do what they please and laugh all the way to a tribunal
From what you've said I would argue any one of the following:
Failure to follow a reasonable request ie turn up to work when you are expected
Being absent without leave
Frustrating her own contract of employment
You make it clear that her request has been considered and rejected
If she fails to turn up, you consider it a disciplinary matter
No further discussion on the subject.
Btw, from July, people have to pay to file a claim wihh an ET...new plan to weed out vexatious claims
So not be bullied!
If you need another nanny you can't make her redundant. You therefore need to go down the dismissal route and follow the disciplinary procedure in your contract. As long as you follow that to the letter you can be shot of her in a couple of months if you have reasonable grounds - and her attitude is definitely making the relationship untenable so that would count.
You would need to do that anyway to give a negative reference - a bad reference must be accurate.
"She is looking to leave in September"
Then this is absolutely not a redundancy situation
Or have I missed something?
I'm very far from an expert but it seems to me that the problem is that you will be paying the solicitor and paying costs for whatever trumped up case she wishes to raise (whether you win or lose) when you could have simply paid her the money in the first place.
Nobody wants the solicitors to be the only ones to benefit
I just wanted to add my two cents worth from a nanny's point of view. I'm so sorry to hear of your predicament and think it's bloody awful and unprofessional what she is doing. It makes people like her give all us nannies a bad name and makes parents really worry over hiring someone in the future.
There are a huge amount of us good ones out there who stick to our signed contract agreements and I hope that in time you can trust another nanny to look after your children if you need to.
If she has signed a contract stating her agreed holiday days then she has no right to ask for more and expect you to just deal with it. It would be the equivalent of you saying that as her employer you were taking an extra week off but deciding not to pay etc. If you were to do something that wasn't agreed on the contract then she would kick up a fuss and state her rights.
I hope that you do seek legal advice and that you can pull the rug out from under her feet. People like that make me sick.
Ok rant over.
As others have said, you can't make her redundant because the position isn't redundant.
The only other option is to sack her. Follow the procedures in your contract.
Or, just let her have the extra 2 days off. Make her take the full 3 weeks unpaid if she doesn't have enough holiday. Use annual leave or temporary care to cover. This is probably easier, although I couldn't stand to employ someone for the next few months who had this attitude.
Does she have a job to go to in September? If not,it might be that she is trying to get you to sack her so she is able to claim benefits as if she just left, she would not be entitled.
Home Eco - she has an advert looking for a new job from September. I don't think she has anything yet.
I can not carry on employing this woman, te trust has completely gone now.
If I can't make her redundant, as many have suggested I do for an easy life, what can I do about the fact she is telling me she will take holiday she neither has leave for, or I have sanctioned.
Is this enough to dismiss her for gross misconduct?
I think that absenteeism in general doesn't constitute gross misconduct but that you can give her clear notice that taking this particular unauthorised absence after being explicitly told that you won't allow it will be considered gross misconduct and render her liable to immediate summary dismissal.
But I'm not a lawyer and you should confirm that with ACAS or a solicitor.
Just to add, the contract states that if this is classed as misconduct rather than gross misconduct, the she gets a written warning but essentially carries on working for us.
Gross misconduct is instant dismissal.
So if taking the unsanctioned leave is deemed the former, she basically gets away with it.
If the job still exists I.e you will need another nanny, then you are not making her redundant. She is either choosing to leave or you are asking her to go? Also as others have said it sounds like she will be committing gross misconduct giving you he right to terminate her employment? ACAS are fantastic and are certainly worth a call. They are totally confidential and can just give proper advise as to where you stand legally.
You could (potentially, again I'm not a lawyer) count the "well, I'm going to take the leave anyway, so what are you going to do about it?" as insolence and hence misconduct and give her a written warning for that; if your relationship's broken down to the extent you describe then surely there will be other instances of regular misconduct between now and August; make sure you follow your contractual procedure re warnings etc. for those and that she's on a final written warning before the date of the projected unauthorised holiday and you'll have a good paper trail to justify sacking her at that point.
I tried ACAS and they said they can not comment on individual situations and what constitutes gross misconduct. They suggested an employment lawyer which I'm going to look into tomorrow.
So, she works two days a week? wants a weeks paid leave? Is this five days or two days as she only works two days a week? I would be inclined to just say fine, have the two days unpaid to save myself further hassle.
Acas will give you advice on how to proceed - they know all the legal ins and outs.
You need to take professional advice not ask an internet forum imo
You can not retrospectively define gross misconduct but it can have broad scope. Theft, violence, criminal prosecution, that sort of thing is easy to say fits gross misconduct, subject to there being proof. Insubordination, not turning up to work will be harder to fit in my view. It is certainly misconduct but is it gross misconduct?
I too would suggest that you call any emloyer helplines you have, start with ACAS as that is free and you can discuss at length with them about the situation and get the employment law specifics as clear as possible. Then call your insurers legal line if you need to double check the legal specifics.
Have you got anything in writing about her intention to leave? I had an employee (but not a nanny so law could be different) who had resigned then changed their mind but we didn't and accepted their resignation nonetheless - clearly if they'd been any good we would've kept them. I wonder if you could follow that route?
She sounds vile. Poor you.
ACAS could not help, so it must be a complex thing. If unauthorised absence is written in the gross misconduct section, then I guess it is an easy situation but if it is not written in there, then it may be misconduct rather than gross misconduct.
Did ACAS point you towards their guides to dealing with employees?
m.acas.org.uk/index.aspx?articleid=924 - this is aimed at small employers, so may be worth a read.
What's difficult to give advice o. Without seeing all your relevant paperwork is the definition of gross misconduct in your case - there is not really one standard definition, it's set by the terms of your contract, handbook (although you probably don't have one) etc
One interesting reason for dismissal that does not have to be either redundancy or dismissal is for 'some other substantial reason'
The SOSR dismissal is for things that don't really fall user one of the other headings, but are significant enough to warrant that course of action
Now, I would argue that a completely intransigent employee, who is expressly going against the stated terms of her employment and the express decision you have already explained to her, is reducing the relationship to one that is no longer sustainable and you have list trust and confidence. So, potentially it could be a SOSR case.
The key thing an ET is looking at in reaching a decision re unfair dismissal is whether an employer has acted fairly ie made a reasonable decision that another reasonable person would also reach. This is clearly quite subjective, but I think if you go doe. He route of saying to her
"I have considered your request. In light of the difficulties caused to me in having to find an alternative solution if you do not attend work as contracted to do, I regret that I cannot agree to further leave. If you go ahead and take the leave anyway, I will be forced to consider that you no longer wish to see out the remainder of your contract"
BUT - and I hate to say this - you have already given her extra time off...so does another 2 days really make a difference? If you can genuinely say yes, I'd consider the SOSR route. If not...well, no good deed goes unpunished.
An employment lawyer friend of mine recently put the odds of winning a case (even if you really think it's a good one) at no more than 75%
So essentially you have to take a view on the risks
NB: I work in HR and used to employ a nanny. I have also uttered the words 'I am never employing another nanny'. It is not easy...
I wonder what would happen is she just says she's sick those days? Or if she has a child under 5 or a disabled child she can could maybe them as parental leave?
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