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Unfair holiday pay / End of Contract

(19 Posts)
Mummy369 Thu 16-Jul-09 00:20:33

Hi, My childminder told me she can't look after my daughter from september. I decided to end the contract earlier because she is away for 2 weeks in the Summer, and anyway my husband is home to look after the children. I gave her 6 weeks notice as per the contract, and now she says I have to pay her holiday pay because she is 'owed' it. She says she is entitled to 28 days holiday - my daughter only attends 3 days per week so in effect that would be 9 weeks paid holiday per year. I told the childminder surely she means 4 weeks? But she disagrees. Now, because the CM has only had 7 days so far, she says I have to pay her 21 days. My sums indicate that if I paid her this sum it would be the equivalent of 7 weeks pay and there's only 9 weeks left to the end of the contractual year! With only a week to go until the end of the notice period, I'm really worried about how to broach this with her. She is a very business-like person and can be very unreasonable at times. She sends text messages whilst I'm at work, repeating them 2-3 times until I reply; Also, she charges FULL PAY for all time off - both hers and ours, incl. sick leave and bank holidays. So I have actually paid in full for every week of the contract, and what she is asking for sounds like I have to pay her twice? Has anybody had a similar experience and have any advice for me, please?

bumpybecky Thu 16-Jul-09 00:30:18

employees are entitled to statutory holiday pay at a minimum rate of 28 days per year (to include bank holidays)

however as she is effectively not full time, the 28 days would be pro rata, so for 3 days per week it would be 60% of 28 days, so 16.8 days

but she's not an employee, she's self employed and is talking rubbish (that's me being polite!)

what does your original contract say?

Mummy369 Thu 16-Jul-09 00:50:42

Well, I've asked to see her copy because we moved house and I can't find mine. Re. the 28 days she also said this was in addition to the bank holidays! I, too, feel she is talking rubbish. Also, notice period ends 65 days before end of contract, so pro-rata again would owe even fewer days as she surely can't have holiday entitlement for the weeks after the notice period has ended?

atworknotworking Thu 16-Jul-09 09:42:19

Why don't you stick this on the Employment / legal bit.

I'd like to be helpful but sounds a bit complicated for my little brain. It sounds pants to me your CM is a bit hmm.

I do agree that holiday entitlement should be pro-rata as you say about giving notice as if your contract has ended surely your liability has ended also.

Get a copy of your contract, if it's an NCMA one or Morton Michel put another post up as a lot of CM's on here use those and will be able to decifer the small print on the back, it will however depend a lot on what she wrote on it herself as well that you agreed to, so get a copy and take it from there.

Just a thought check the review date as well, cos if it's out of date you may have a case for saying shuv it.

Blondeshavemorefun Thu 16-Jul-09 10:29:36

ask to see her copy of contract that you both signed and see if you agreed to that

as only works 3 days a week would be 16.8 917) not 28

tho again cms are se and dont techinally get holidays/sick pay UNLESS you agreed to this and is in contract

AtheneNoctua Thu 16-Jul-09 10:36:15

She is taking you for a ride. If it is in the contract, you should pay it. If it is not, you shouldn't.

Is she asing you to pay her for holiday she intends to take after your contract ends? If so, that is outrageous. I resigned from a job in December. Do you think I should gop back to them ask them fo pay for this years holidays? hmm

Mummy369 Thu 16-Jul-09 19:21:13

Yes, she's asking me to pay her throughout the summer (basically 20 more 'working' days) and is going to be away for a fortnight in August. She had also already given me notice that she wouldn't be able to have my daughter from September anyway because she was unwilling to do the afternoon nursery run. Last year she didn't use all her holiday - and didn't ask me to pay more. She also started a stand-up row with me this morning when I was dropping-off my daughter and then refused to have her anymore! Really went down well with my Manager(NOT!) My daughter was supposed to be with her for another week, but luckily DH is teacher and breaks up on Monday.

AtheneNoctua Thu 16-Jul-09 20:05:25

What an unprofessional sorry excuse for a childminder. She is being totally unreasonable, but I expect you know that.

Julesnobrain Thu 16-Jul-09 23:49:24

When you hand in your notice then your liability ends with notice period. It is actually irrelevant how much holiday pay you do or do not pay here provided you stick to the 6 weeks notice. ie 3 days x 6 weeks. If your CM elects to take holiday during that 6 week period and you have to pay for that all well and good but if she elects to work during that period equally your liability ends there you do not owe her additional holidays. Those 6 weeks at 3 days is the end of your liability. Don't pay a penny over that she is not an employee.

OnceWasSquiffy Fri 17-Jul-09 00:38:26

Call her bluff. She would be laughed out of court.

PinkChick Fri 17-Jul-09 11:19:02

im guessing this morning was as a result of her realising she CAN NOT charge you all this and contract will prove that!..as a cm, i charge full fee when any child is of be that sick or hol, when im sick i get NO PAY, when im on pre discussed hols its half fee, if i need to take emergency hol its no PAY..she cannot charge you for hols she hasnt taken in her financial year just becuase your leaving before it ends!..shes a loon!, you do not owe her any more than your agreed notice period and i would def NOT be paying her for the coming week..if you already have i would be contacting ncma to see what to do about claiming it back due to her refusal to work it and her completely unnaceptable behaviour!..totally shocked!..good luck

bran Fri 17-Jul-09 11:26:29

If she has refused to take your DD then she has effectively broken the contract. Send her a letter saying that as she has broken the contract, at great inconvenience and some financial cost to you, you feel that you are no longer bound by the conditions of the contract and will not be paying her any more money (unless you pay in arrears in which case pay her for any days you sill owe). Make sure you do it in writing in case she trys to chase you for more money afterwards.

DadInsteadofMum Fri 17-Jul-09 11:45:42

bran is quite right - she is in breach of contract stop paying now.

CarGirl Fri 17-Jul-09 11:51:15

yes she has done you a favour by breaking the contract, do not pay her a penny more.

I wonder if she has checked the contract and hasn't got a leg to stand on. Do you know any of the other parents she cm for and feel you could ask to see their contracts just to see what they say?

Oligo Fri 17-Jul-09 12:14:47

Agree contract is no longer vaid, if anything you could probably try and get compensation from her for contract breach.

If you send a cheque for any arrears etc. saying x amount is full and final payment for services and she cashes it i'm pretty sure this is considered acceptance of your terms in the letter e.g. full and final payment.

CarGirl- getting contracts from other parents just in case is a good plan but possible there might be different terms for different parents.

If you play the waiting game she is only likely to bother paying for solicitors letter if they say she has a case once they've seen the contract. You can then ask them to see a copy and also inform that she broke contract.

OnceWasSquiffy Fri 17-Jul-09 22:11:58

The damages for a breach of contract would normally include expenses incurred by yourself in finding alternative childcare. So she really has put herself in an 'unfortunate' position...

AtheneNoctua Sat 18-Jul-09 14:50:59

Although I wonder if you can prove that she told you not to bring her back. I think you should consider the possibility that this fruitcake might say "I never said that. You just didn't show up." Were there any witnesses?

Mummy369 Mon 20-Jul-09 15:38:37

Witnesses - my 3 yr old daughter, another 3 yr old and a 16 month old! Don't think I'd be able to rely on them in court LOL. Had to take emergency carers leave from work so my Manager could back up what I said to her. CM e-mailed me and asked to 'sit down and discuss profesionally' - I e-mailed back and said that the contract said nothing about paying for holiday that hasn't been taken and reminded her I've paid for every week of contract so far and the next fortnight.

I really appreciate everyone's comments and advice. I'm new to Mumsnet and found it when I googled 'childminders and contracts' so everyone has been a great help just at the right time - I was beginning to doubt myself as CM has made such a fuss.

JenniPenni Tue 21-Jul-09 08:52:40

I think it's rich she's saying ''let's chat and be 'professional' now''... she sounds totally unprofessional!

She is 100% in breach of contract by refusing care - she is not allowed to do this, even if you owed her money (which you don't by the sounds of it). You can sue her for your loss of earnings ivo lack of childcover at short notice.

I personally would not chat to her on the phone, would keep all texts and keep everything in writing with her.

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