Nanny returning to work with child

[bedheadmum]

Hi All,
Would be grateful for legal based advice.
Nanny initially wanted return to work after 6 months with child which we are not happy with and have mentioned this to her. (she has not given formal notification of return to work date yet).
However our 2 children will both be in school from September and we will not need her. She has now said that she might extend her maternity leave (which I know she cannot afford to do because she has told me) so that it coincides with this and then there is no job for her to come back to and she will be eligible for redundancy pay.
Essentially, I think she wants a pay out now as in theory we have to keep the job open for 1 year and it won't exist after 9 months.
But whatever the situation we would not want her back with her baby and she has made it clear that she has to bring her daughter with her.
I know we are not obliged to allow this as it is a change in terms of contract. My question relates more to her implying she is eligible for redundancy pay after 6 months as in theory the job does not exist for the full duration of her maternity leave.
Sorry if this is a bit rambling! But it is a bit convoluted!
Grateful for any advice/experience.

[butterry]

How long has she been employed with you for? Under 2 years you are not required to pay redundancy. If you are not going to accept her returning to work with her child then that is the reason to state for redundancy. It's no longer the same role she had before. It doesn't matter if she is on maternity leave or not as long as you go through the formal procedures (takes about a month with written letters). We made our nanny redundant whilst she was pregnant because our daughter was going to nursery from 3 years old so it was a change in circumstances not because of the pregnancy.

[bedheadmum]

Thanks for the reply. She has worked for more than 2 years hence her suggesting it.
If we do not want her to bring her daughter and she is not willing to return without her, then as I understand it she has to resign (as is not eligible for redundancy pay).
My concern is that she is threatening to use the knowledge that her job is not available for the full year of her maternity leave to claim redundancy pay before actually becomes a reality!

[NorthernLurker]

Forget about the baby issue. That's a red herring. She has the right to return for 12 months. You will not be wanting her back because you plan to do away with the job. It doesn't matter why that is. She has worked for you for more than two years. She's entitled to redundancy.

I would suggest you negotiate a settlement and move on.

[Brokenbiscuit]

Well, she will be redundant, won't she? There is no reason why she can't extend her maternity leave in these circumstances, and given that you're not willing to consider her suggestion that she returns to work earlier with her child in tow (which is fair enough - your choice), then I guess her best option is to wait it out.

If she resigns, she will presumably make herself intentionally unemployed, which would probably affect her rights to benefits etc. It's unfortunate for you, but it sounds like she is acting legally and rationally in light of her current circumstances.

[HeebieJeebies456]

Just pretend that you will still need a nanny for the school runs/before and after school care etc and then terminate her contract.
Just make sure you put it in writing and mention that her insisting on bringing her dc to work is a big issue.

It doesn't always pay to be brutally honest with people......

[Waitingonasmile]

Has she been a good worker and fulfilled her role well? If so, then accept you'll be paying redundancy pay and stop looking for ways to avoid it. I think it's really sad that's how someone is rewarded for caring for your children.

[MrsTerryPratchett]

If she resigns, she will presumably make herself intentionally unemployed, which would probably affect her rights to benefits etc. It's unfortunate for you, but it sounds like she is acting legally and rationally in light of her current circumstances.

I agree. Was she a good nanny? Were your children’s lives enriched by her? Can you afford redundancy?

[NorthernLurker]

If she can't afford redundancy she shouldn't have a nanny.

[2014newme]

We're talking max of about £700 redundancy pay plus notice. Is it really worth all this faff trying to avoid it?

[NewtsSuitcase]

I'm a bit confused by your post but essentially

She is entitled to redundancy pay once she has worked for two years if you no longer need an employee to do the job.

You can make her redundant whilst she is on maternity leave if the job no longer exists at that time. You do not have to wait. If she's already been with you for two years she will still get redundancy pay.

If you're happy for her to come back but she refuses if she cannot bring her baby then she will need to resign. If she doesn't then she will not be turning up for work and you can dismiss her (having followed the correct process). She will not get redundancy pay.

I'm an employment lawyer

[Onyourtoes]

She is trying to look after her daughter and get what she has been entitled to.
You should of thought of this before you opted to use a nanny as childcare.
Do the right thing and pay her the redundancy.

[Brokenbiscuit]

If you're happy for her to come back but she refuses if she cannot bring her baby then she will need to resign.

Or she can take her full entitlement to maternity leave. The OP's problem is that, if the nanny takes a full year on maternity leave, there will be no job for her to come back to, with her own child or not. Hence she will be redundant and the OP will have to pay out.

[NewtsSuitcase]

Well yes but that's aways going to be the case. If you employ someone in a job that will not last forever (such as nannying) and you allow them to obtain two years' service then at the point at which you no longer need them, they are redundant. That ought to be factored into anyone's decision to employ someone in a time limited post right from the outset.

But statutory redundancy pay is low. If she has two year's service and is under 40 then its less than a thousand pounds even if she earns the maxumum weekly wage. However she will also be entitled to be given notice of the fact that he employment is ending and entitled to accrued but untaken paid annual leave. She has no entitlement to payment in lieu of notice though, she has to work her notice if you want her to.

I'd personally end the employment now (assuming you don't have a replacement nanny working for you at the moment) since then the notice period is running during her maternity leave which will save you money since the notice period and the maternity pay will overlap and you won't be paying for both.

[Ttbb]

Why don't you tell her that she can cone back so long as it isn't with her daughter (a lot if school aged children have nannies so it's not weird or anything, just say you changed your mind). She won't come back and you won't have to pay.

[bedheadmum]

Thanks everyone.
Just to clarify: we are happy to have her back without her daughter after 6 months (when she has told us she plans to return). We would then terminate the contract when the kids went to school and pay redundancy at that point.
She is claiming that because the job is not going to be available for a full year of her maternity leave then we should pay her redundancy now- even though we have explained that her job still exists at the time she is proposing to return.

We were under the impression that we cannot by law pay her redundancy if the job exists on the date she wants to return.

[NewtsSuitcase]

You need to assess this at the point at which she returns. The point at which she returns is her choice.

If she returns and the work is still there then the role is not redundant. It will be redundant later.

If she doesn't return until the work has finished then she will be redundant at the point at which the work finished.

You are not obliged to make her redundant now even if she wants that (although as I've said, it would be cheaper that way if you don't have a replacement nanny at the moment).

[bedheadmum]

Thanks NewtsSuitcase! Will put that to her.