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Maternity leave and compromise agreements(13 Posts)
Hi, excuse my ignorance or as I believe it to be, confusion due to so much conflicting information but we have found ourselves in a position that we don't know how to handle.
In summary, our nanny went on maternity leave last year and is due back to work soon. She has articulated that she is not able to come back on the same terms as she was on when she went on maternity leave but would like to look after our child in a child minding capacity at her own home. The hours she can offer do not meet our needs and verbally we all agree that she can't return to work as our nanny. None of this is in writing. She has now informed us that she is pregnant again and we believe she intends to start a second period of maternity leave. It is quite clear that we need to part company and believe a compromise agreement is probably the way forward. We can't easily broach the subject as a no win no fee solicitor would rub their hands with glee at the prospect of a constructive dismissal type case. Any advice or links to helpful resources would be much appreciated. Thanks in advance, hopelessly confused.
Pregnant on Maternity Leave - aimed at employees but may be a useful read. It gives contact number for ACAS who can give employers and employees advice.
Do you use a nanny payroll company - they may have a legal helpline for advice.
Do you still need a nanny? If not, then the position of nanny is redundant. So look at ACAS: Managing Redundancy for Pregnant Employees
ACAS can advise on redundancy procedure.
i think if your nanny is unable to fulfil her contract then she has to resign? before going down this route i suspect it would be worth asking her to put her 'part time proposal' in writing to you, you can then evaluate if this covers what you need. i am not sure from your op re timetables, but would assume she is due to come back to work for you ahead of going on her second period of maternity leave.
whilst i appreciate your concerns re unfair dismissal and have to confess i don't know enough on this to advise, i would suggest backing up conversations with e mails and keeping these recorded so if it did lead to this you have evidence of what was investigated.
i think your suggestion of a compromise agreement sounds good, but i would seek legal advice in the same situation.
How pregnant is your nanny?
She can't start a second maternity leave until 11weeks before her due date anyway.
If she's not able to come back on the same terms as before, she may decide to resign anyway and then you wouldn't be liable for her second maternity leave
However, if there's only a small gap between her maternity leaves she could use holiday or unpaid parental leave to bridge the gap.
I would leave the second maternity leave bit out of things in your discussions and emails. She has stated that she can't do the hours you want or the terms you want. I can't see how this doesn't mean she has to resign. Citizens Advice for help?
Assuming that she would return to work between mat leaves (bit different if she can run them together as she can defer the problem until after that mat leave) she has no legal right to change her job in this way. None.
I am not at all sure you need a compromise agreement or to pay severance. I think you need some decent process advice. Do you use a payroll agency? Legal advice may be included.
No need to offer a compromise agreement at this stage. She is entitled to her old job back on the same terms or similar and no less favourable if she took over 26 weeks maternity leave. If she is unable to do this she needs to resign and give correct notice.
I would write her a letter summarising her suggestion, reiterate that she is very welcome to come back on the exact same terms as before to a nanny job at X location for the hours of ABC per week taking care of children Y and Z. If she is able to meet her contractual terms then you will be sad to accept her resignation but will understand, however you really do want her to come back to her role.
She has no case for constructive dismissal from what you have said and they are very, very difficult to prove. Nannytax and other payroll companies have a free employers' legal advice line which I suggest you use.
Thanks guys. Interesting that you mention ACAS. We initially thought that was a little overkill but it does seem the most sensible course for now. Re coming back to work before 2nd maternity leave, she hasn't told us of her intentions but dates would allow her to remain on maternity leave. Yes we use a payroll company and it was them who warned us to tread carefully hence seeking advice before communicating directly with her. We will as them if they can steer us towards a recommended legal helpline.
If she is unable to meet her contractual terms is what I meant to write. You'd also need to clearly decline her suggestion. Clearly I have no business posting after 10pm!
If she is able to run her maternity leaves together she may well do that. You may find, depending on your circumstances, that you want to change your childcare (school/nursery/childminder instead) and then you might need to make her redundant. Her length of service is important for redundancy so worth thinking about in advance.
She will continue to accrue holiday pay during her maternity leave/s.
Her job is to be held open whilst she is on mat leave. She has to either come back on the same contract or she can request flexible working in writing. You should give consideration to her request in writing and reply with you decision, ie your request does not meet with the hours of business etc. If she does not return on her expected date she is effectively giving notice. If she writes to you with evidence of wks gestation and her not returning due to mat leave then the job stays open for her again. I doubt you will pay smp this time as her qualifying weeks are unlikely to comply with those conditions. She would get MA payable through the job centre irrespective of her job with you. If you decide not to have a nannt you can make her redundant legally now.
If she's going to run her maternity leave's consecutively, you have nothing to lose by keeping her. She's clearly not going to come back after her second maternity leave anyway and you can claim it all back.
It might sort itself out before that if she wants to come back with her child (or as a childminder), as you can just say no.
There is a cost to the OP though as holiday accrues throughout mat leave. Plus the inconvenience of not being able to offer a permanent position for another year despite basically knowing she isn't coming back.
I can see that on that situation a compromise agreement with a minimal payment might be a solution. But it would need very careful handling.
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