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Lay Off Clause - Fair?

(36 Posts)
nannynick Sun 24-May-15 17:36:43

This has come up a few times on here over the years. As we approach the Summer Holidays, this clause in some nanny contracts might be actioned, so I wondered what the current feelings are about it.

Here are examples of the clause:

(this was posted by a Mumsnetter in 2011)
"There may be occasions when the Employer is on a family holiday in the UK or abroad and your services are not required for the duration of the holiday. In these circumstances, the Employer reserves the right to lay off and you will be paid statutory guarantee payments during the period of lay-off."

"There may be occasions when your Employer does not require your services. In these circumstances your Employer reserves the right to lay you off and you will be paid statutory guarantee payments during the period of lay-off."

Gov.uk says that the max amount of Statutory Guarantee Payment is £25 per day for up to 5 days in a 3 month period.

A variation on this could be where there is a Percentage Paid

"The employer reserves the right to lay you off and agrees to pay you x% of your pay for the duration of such lay-off."

Do you feel clauses like this should be used for when a family go on holiday, where the nannies annual leave entitlement has already been fully used (with prior authorisation from employer)?

Should these clauses be in contracts by default or just an option that could be added in special circumstances, or maybe they are not appropriate at all in a nanny contract?

Some parents would not dream of not paying their nanny their usual wage in circumstances where the family go on holiday more often than the nanny gets holiday entitlement. Others though will use whatever the law allows as a means to pay little or nothing.

Cindy34 Sun 24-May-15 19:39:34

If parents are using it as a way of not giving nanny additional holiday entitlement due to the parents deciding to go away, then it seems a bit unfair. Not the nannies fault that the family are going on holiday a lot.

Though if a nanny signs such a contract, that is up to them isn't it? Maybe some nannies don't read the contract before agreeing to it or don't understand it, is that your point? Are you trying to get things like this noticed more by nannies and parents, as they may not be writing the contract themselves, so that it gets talked about before agreement is made?

swlondonnanny Sun 24-May-15 19:42:32

Had it in my contract once, would never sign a contract with lay off clause again.

Tapestry12 Sun 24-May-15 20:31:56

I read contracts very carefully. I would never agree to the above clause Nannynick.
It is important that nannies read their contracts and adjust/negotiate with their employer to create a contract that works for both parties.

nbee84 Sun 24-May-15 20:34:26

Not something I would ever agree to.

0x530x610x750x630x79 Sun 24-May-15 20:37:28

If the nanny is given a fair and realistic idea of how often this is likely to be when taking up the job so they can factor it in then of course yes. But if it is a "maybe" clause then they announce they are actually away one week a month, that is really unfair.

Callaird Sun 24-May-15 23:58:38

I use my own contract.

I would never have a clause like that in my contract. That's madness. Most of my employers have been partners in large companies and have had sabbaticals from work, from between 6 and 12 weeks. I could not afford to live on a quatre of my wages for 2 weeks, let alone 6 weeks or 3 months.

Callaird Sun 24-May-15 23:59:09

*quarter!

Blondeshavemorefun Mon 25-May-15 08:22:00

Would never agree to that clause when employed

My contract states that if the employer goes on holiday over their two weeks holiday that I get paid in full and time off

No way could I afford to be paid a few pounds a day every time they galavantee off

Last perm family went away every ht and 2 weeks at Easter and Xmas as well as summer hols and then my choice so often 11/12 weeks holiday a year

Many nannies don't read their contracts properly then moan when something arises - which is their own fault for agreeing to it

If some one worked in an office /family business and decided to shut for a few weeks - they wouldn't agree to your Clause Nick - why should it to nannies

NewTwenty Mon 25-May-15 09:08:42

It is interesting because I once went on on AIBU because I had noticed for two years running that our lovely young cleaner was desperate for extra work in the summer months, due to so many of her clients going on holiday and not paying her - we always paid while we were away and got her to do extra cleaning. I felt that it was mean to do otherwise, to someone who was living in a costly part of London.

Oh my I was absolutely flamed as 'naive', 'stupid' and definitely 'U'.

I am not saying that nannying equates to cleaning (!) but they both involve a gap in need due to a family holiday - so why is one practice seen as commonly acceptable and one not?

PenguinsandtheTantrumofDoom Mon 25-May-15 09:12:35

I wouldn't ask for this clause as an employer. It is unfair.

I think cleaners are seen as different because they are not employees. Though if I had one I'd do what you did.

nannynick Mon 25-May-15 09:45:44

A cleaner is not usually an employee, they are a contractor. So the relationship is different but I know families who feel the same as you and do pay their weekly cleaner every week regardless of family being away.

Is it the relationship level which determines if this clause is reasonable or not?

nannynick Mon 25-May-15 09:49:11

Parents with nannies - do you have a clause like the examples in your nannies contract?
Did you write it, or instruct the payroll company to include that clause, or it just come as default?

PenguinsandtheTantrumofDoom Mon 25-May-15 09:54:36

I don't currently have a nanny. But when I did, no absolutely not. I don't know what the standard template would have looked like as I drafted the contract myself (I'm trained to do it btw. Wasn't a bodge job!).

My personal view is that such clauses are not appropriate at all in nanny contracts. If you have a factory and have no orders coming in, having a lay off clause may be the deciding factor between being able to 'pause' things and hang on til some come through or closing. When you employ a nanny you should have budgeted for his/her salary and the whims of your holidays shouldn't affect that. I think the only moral use of lay off clauses is if it protects employment that may otherwise have to be terminated.

littleladyluna Mon 25-May-15 11:04:54

I agree with the pp who said that nannies should know what they're signing before they sign it. What happens so often is that nannies sign whatever is put in front of them and then run to the help boards asking how to resolve it when something crops up. There is usually very little to resolve - you should have read the contract! If you didn't understand something, ask someone to explain it to you or go to the forums before you sign.

I think a lay-off clause is pretty awful when included in a nanny contract, especially when the contract in question stipulates an annual wage to be paid in instalments - which would lead most people to think they were safe from this kind of thing.

worridmum Mon 25-May-15 14:56:13

Wouldnt that clause be deemed as a unfair/unenforcabe (i cant remeber the proper term for it) and thus would be unenforcable eg a contract cannot have unlawful / explotive terms eg paying less then minium wage contractally or less then legal requirment for holidays along those lines

Or I am remebering my employment law wrongly from university (its been years since I have done employment law

FlorenceMattell Mon 25-May-15 15:10:43

I have been presented with this clause in the contract by current family and asked for it to be removed. They agreed. Then when hours changed and contract rewritten they tried to include it again. I refused to sign unless contract amended and they agreed.
I think it came in the draft contract from payroll company. I don't think they are planning to be away for more than a couple of weeks.
To be honest I would give notice if I was employed but not being paid.

Maryann1975 Mon 25-May-15 17:35:21

I'm a cm and charge full fees when families are on holiday (I know childminding is different to nannying but it's a similar situation I think). Some families query it, but they can take it or leave it. I won't budge on it. Why should I not get paid just because you are choosing to take a holiday.
i used to be a nanny and wouldn't have signed a contract with that clause in. My bills need paying 52 weeks a year.

PenguinsandtheTantrumofDoom Mon 25-May-15 17:45:46

Worrid - I don't think so because there is specific provision in employment law for correctly formulated lay off clauses. However, I've not had direct involvement in them so I'd not be sure exactly what you need to do to have a compliant one. And whether it could be challenged in a nanny setting.

YesThisIsMe Mon 25-May-15 17:55:54

If I were in a situation as an employer where I knew I was going to be out of the country for many weeks each year - e.g. a full 6 weeks each summer - then I'd investigate whether a clause like this might be acceptable to prospective employees. Maybe they've got family in Australia that they'd like to take an extended break with. Maybe they'd be happy to take an alternative summer childcare job with their retention contract payments on top. But I'd be up front about it and endeavour not to be exploitative. If it works for both parties then that's good, but if it doesn't then I'd need to suck it up and go for another option.

nannynick Mon 25-May-15 18:14:09

The lay off thing seem to only apply for 5 days in any 3 month period, according to Gov.uk (yeah I know, can be rather simplified), so it would not be useful if the family was to go away for 6 weeks.

I am wondering if these clauses are being included by payroll companies by default for some reason. If parents want to add such a clause and discuss it with their nanny, then that is reasonable but having it included by default?

Many nannies will not sign such a contract but some won't read it or understand it, or may feel pressured into agreeing. Imagine yourself at age 19/20... did you know much about contracts, know that this sort of clause is not something you want in the contract?

Cantkinsale Mon 25-May-15 19:02:01

I wouldn't agree to it. I can come in on a Monday morning to be told they're going away for 4/5 days from Thursday. not enough time to look elsewhere for work to cover the lost wages. Their choice to go away.

YesThisIsMe Mon 25-May-15 19:14:52

I don't think there are any circumstances in which that sort of short notice short period layoff would be a reasonable mutually satisfactory arrangement, no.

0x530x610x750x630x79 Mon 25-May-15 19:44:08

I have (well am looking for a new nanny) a nanny but i would never include a clause like that, unless i knew i was going away for something like 3 months in the summer, so a long enough period to get temporary work.

When our nanny started she was very young so i insisted she got her dad to sign it as well as her (he knows his stuff, we know him) and didn't want there to be anything unfair in it (standard template from web).

RattieofCatan Mon 25-May-15 20:23:43

I wouldn't sign a contract with that clause, it's really bloody unfair.

I did have a clause saying that the family didn't have to pay me the full amount in an old job but as it was one of my first live-out positions I didn't query it, it was 80% of normal wage IIRC but they only did it once.

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