Am I being too harsh with instant sack?? A bit long

It does seem rather strange behaviour from someone you are paying from 1pm. Wonder if she ever gave your children an excuse for why she was late collecting them.

Good luck finding replacement childcare.

so the nanny wont say where she was/why she was late

sounds dodgy to me

I think you are right to be angry.

I actually find her response bizzare. She didn't even give a reason. Is she ok? (personal crisis, depression, drugs?).

Or perhaps she is not very interested in the job in which case getting rid of her wont even upset her.

Chipy, the Nanny had been ASKED not do to something. She went ahead and did it anyway, with no decent excuse. A good nanny-employer relationship hinges on trust. If you can't TRUST your Nanny to do the job YOU ask her to, then it won't work. I would LOVE to have my charge spend extra time in playgroup etc, I work 70+ hour weeks and have no time for myself at all. But I am hired to do a job and to do what my bosses require of me. If I put my own needs above my job, then yes I would expect to get fired.

She needs to go.

I'm an employment lawyer, so I'll give you my brief professional opinion...

The first point is that an employee does not accrue the right not to be unfairly dismissed until they have acquired 1 year's service. In this case, your nanny does not have this, so, on the face of it, she would not have the right to bring the claim and you could simply dismiss without providing a reason or following a fair process. However, there are limited circumstances in which employees can bring claims for unfair dismissal without a year's service (I don't have time to list them out here but if you Google it I'm sure you will find it somewhere). I doubt, however, that any of those exceptions would apply. But, the other thing to be very careful of is claims for discrimination, for which no length of service is required. Potentially, she could argue that she was dismissed for a discriminatory reason (she would obv. have to identify such a reason and have a reasonable case) and bring a claim on that basis. Damages would be assessed in must the same way as for unfair dismissal plus she could get an injury to feelings award.

So, for those reasons, it is usually a good idea to try and identify a fair reason for dismissal and follow some sort of fair process prior to dismissal, even where an employee has less than 1 year's service.

You had performance issues (household duties, cooking, general attitude etc) with her that you haven't yet addressed via a formal process. Accordingly, these matters shouldn't really form any part of your decision to dismiss on this occasion. In order to dismiss for poor performance, you should notify the employee of the problems, discuss the issues with them and give them a reasonable opportunity to improve.

In fact, your grounds for dismissal are nothing to do with her performance. Instead, it is the following:

(1) Her failure to follow her employer's reasonable instructions (to pick your child up from school at a certain time) without any reasonable excuse e.g. if she had been in an accident or something and couldn't get there then obviously it wouldn't be reasonable to sack her for failing to be there.

(2) The consequences of that failure, potentially placed your child in danger. Okay, he had his homework club, but, how was she to know he would go there? He could have wandered off anywhere really. You are paying her to take care of your child between certain hours and she failed to do this without good reason.

(3) Furthermore, she compounded the issue by failing to report it to you. This is arguably a dishonesty offence (although there is some caselaw which says that employees are not obliged to report their own breaches of contract to their employers).

In my opinion, this amounts to a serious breach of the implied duty of mutual trust and confidence that exists between employer and employee. I would be fairly confident that her behaviour constitutes a "repudiatory breach" of contract i.e. so serious it permits you to terminate. However (disclaimer alert!!) I obviously don't have all the facts and am basing this on what you have said, so, to be absolutely sure of your position, you really should consult a solicitor or a CAB before dismissing her. Okay, it may cost £150 or so but it would be money well spent to have the confidence in yor decision.

In terms of process, I would suggest you write to her setting out the the "allegations" (not the performance issues as these are not part of the dismissal decsion). Invite her to a meeting to discuss. Allow her to put her side of the story - you need to bottom out the issue of (i) was there a reasonable excuse for not being there (I know she has said there is none but you need to establish this "formally"); and (ii) why she didn't report the incident immediately too (this will be much harder for to explain away). Then tell her you need to think about it and you will let her know your decision shortly. Then write her a letter confirming her dismissal. You do not need to pay notice for gross misconduct offences. However, she may have a go at you for wrongful dismissal (i.e. try to claim her notice money at a Tribunal aruing that the offence did not constitute gross misconduct and she was therefore entitled to her notice money - she can bring this claim regardless of her length of service). Therefore, you might be minded to just pay her her notice money to get rid of her relatively quietly.

Whilst all of this is going on you could potentially suspend her on full pay (although it would be safer to do this only if your employment contract allows - if it doesn't then there are risks associated with doing so, although, if you have really lost faith in her, then (speaking as a mother rather than a lawyer) I would take that risk.

Hope that helps.

I would sack her if you don't trust her.

I think the combination of (a) not picking up the child at the time instructed for no good reason and (b) not telling you about it would, for me, tip the balance in favour of it being gross misconduct. I know nanny nick disagrees with this and he may be right but I think it is certainly arguable.

If it was me, I would pay her her contractual notice and find someone else (and probably keep her on while I was looking if that was at all feasible - if not, not). But I wouldn't keep her. You need to like and trust your nanny, and you don't.

xx

Sorry, chipping, but being lazy, letting standards slip, having nanny being stressed and sharp with the children and having her not fulfil her responsibilities (and then refuse to give an explanation) would not add up to my definition of a competent, engaged and trustworhty employee.

Ducati I personally would give her a written warning and tell her that if she does not pull her socks up and address all of the issues you have wiht her immediately then you will dismiss her. But if you decide to let her go then you need to take action to dismiss her BEFORE she has passed 11 months of employment (so that the notice period - presumably four weeks - does not take her over the 12 month hurdle). After 12 months you could still dismiss her, but would need to go through a fomrla process with additional warnigns, meetings, etc and document everythign carefully and give her a chance to improve. You could alternatively make her redundant without having to pay redundancy, but you could only do this route if you have decided instead to change your childcare arrangements (eg to a live-in, or au pair, or club).

chippin - i think its the fact op asked the nanny to pick up on time that day and not send to homework club that annoys her as the nanny didnt do as she asked iyswim

op - as i said before do you know how often they attend this club? are you charged for it?

that would piss me off if im paying a nanny to pick up yet also paying on top for homework club

my eldest charge sometimes goes to after school club, but thats if i cant pick her up as picking up other charge from different school 15mins away who has also had a club after school and both mb/db fine with that

I'm sorry, but this is an enormous amount of fuss over a 9 year old going to a homework club that he often attends.

Yes ducati asked for him not to go that evening because he'd fallen out with a friend, but for goodness sake he has gone plenty of other times.

She didn't 'abandon' him - really a little perspective is called for.

Fair enough to be annoyed, fair enough to tell her you don't want them going anymore - but hardly a sackable offence FGS.

wrinklyraisin if there was that option at the nursery and you regularly did that then what is the problem?

Just as an extra thought it may be worth speaking to the teachers who run the homework club I would have thought that they have a record of attendance. Don't you usually have to book the homework club i'm surprised they haven't spoken to you if its been happening often, get the facts straight and written if need be as a record.

Whether the cmS conduct was gross misconduct is irrelevant!

In the first year, an employee can be legally sacked for any reason and without any process.

The exception is discrimination, eg sex, disability, ("wrongful" dismissal) which doesn't seem relevant here.

I guess we were at cross purposes there nn, what I said is only true if you pay notice, which i assumed would be done, but you get rid on the day

you can dismiss someone under a year with no reason give (you have to give or pay full notice).

Yes, I agree. Currently I'm assuming that notice isn't being paid. Maybe I shouldn't assume that.

ducati - are you paying in lieu of notice?

Unless there is something in our contract that says the full disciplinary procedures don't apply, then you can dismiss someone under a year with no reason give (you have to give or pay full notice). I'll have to find the reference, but I know it's true as it's happened to me and had all the follow up legal advice

www.adviceguide.org.uk/index/your_money/employment/dismissal.htm#Step_one_who_cannot_claim_unfair_dismiss

If you look at step 5 here, you can only claim unfair dismissal if your employer claims your conduct is poor if you have been there more than a year

while you may be able to sack her (but i doubt it as she could probably argue not gross misconduct) im pretty sure if you just sack her you cant legally replace her for 3 months.

so make sure you sack her the right way (if shes that crap then im sure she will pretty soon have 2 warning and dismissal) and then of course you can replace without any repercussion

Disagree with lobsters as the 1 year thing applies to Unfair Dismissal, not to Wrongful Dismissal. Unless of course anyone can point to information which says otherwise.

Agree with lobsters. It gets more difficult after a year.

If she has worked for yu for less than a year she can't claim unfair dismissal, so you can sack her. I would.

One thing to note, as she has only been with you less than a year, you can get rid for any reason so long as it's not discriminatory (ie on gender, age, disability etc). I'm not saying it's fair or what you should do, but for less than a year, whether it is or isn't gross misconduct is not an issue.

I would issue her a written warning.Have they been at homework club frequently because you want them there or because she is late all the time?If its because she is late then I would deffinately give written warning after this incident
If its been because you want them there then maybe(apart from yesterday) she thinks its ok for them to go.If she has always done what you asked up til yesterday and you have wanted them at homework club I would give verbal warning.

I think failure to collect a charge at the agreed and appropriate time would fall under Gross Misconduct in my contract, as it is basically neglect and disregard of my duties iyswim? Just because there is a homework club does not negate the fact the nanny was supposed to collect the children straight from school. It would be like me saying "Oh well, there's another prechool class right after my charge's playgroup, she can stay there and I'm going to spend another hour in Starbucks instead of going to collect her". Totally unreasonable IMO and totally a sackable offense.

You don't have a leg to stand on with Gross Misconduct. Your children have been going to homework club on a regular basis, so it's not GM for her to have allowed this to happen, even though it was against your wishes for this one evening.

I don't even think you can give her a written warning for this as what she did (allowed them to be taken to homework club and picked them up from there) has been accepted by you, you just said you didn't want it to happen that evening because of friendship issues. It's not like she left them standing on the side of the road.

You do need to make a time to sit down with her and see if you can get to the bottom of the problem. Tell her that the children feel like she isn't as friendly and wonder why and that you have noticed her snapping at them etc. Try to be concerned about why she feels the way she seems to rather than just wanting a solution. It's much better to see if you can sort this out than go through the hassle and upset of getting a a new afterschool nanny.

Also, you need to sort this afterschool thing out - either it is or it isn't acceptable for them to go to the homework club and her to pick them up from there.

Also, if you get to the bottom of what the nanny was actually doing instead of collecting your child then that may be a clear instance of gross misconduct (depending on what that is).