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Original poster

Gross Misconduct

37 replies

mranchovy · 10/10/2011 16:03

Without going into the background (e.g. here), there are various draft Gross Misconduct clauses available on the internet, but nothing tailored towards nanny/au pair contracts.

So here are my bullet points:

  • Negligence: any negligent act or omission with the potential to endanger the children
  • Breach of confidence: disclosure to or discussion with any third party of any information relating to the children or the employer or the employer's family unless required for the perfomance of the duties or specifically authorised by the employer. Pictures or details relating to the family must not be posted on any blog, forum, social networing or any other public or private web site whether anonymously or otherwise.
  • Drunk driving: driving a car belonging to the employer at any time while unfit through drink or drugs
  • Alcohol/drug abuse: intoxication or incapcity through use of alcohol or drugs while on duty
  • Illegal drugs: posession or use of illegal drugs [while on duty or in the home/at any time]
  • Violence/abuse: violent or abusive behaviour to any person
  • Theft
  • Willful or reckless damage to property
  • Computer/internet/technology misuse: use of any equipment or service provided by the family (e.g. WiFi, broadband, mobile phone) to access any pornographic material or for any illegal act
  • Any other act or omission which may reasonably be considered by the employer as gross misconduct
  • [Insubordination: failure to comply with any reasonable instruction given by the employer - I personally don't like this one as it sounds officious and antiquated and if any non-compliance were serious enough not to be dealt with as an ordinary disciplinary matter it would be covered under the previous catch-all]
OP posts:
Original poster
mranchovy · 11/10/2011 17:57

My GM includes breach of terms of the contract

That wouldn't work under English Law (by definition a breach that is a minor breach does not warrant termination without notice and a clause that attempts to elevate any minor breach by one party to an event that excuses the other party of his contractual responsibilities would be struck out. Furthermore a dismissal for gross misconduct (after 12 months service) still has to be fair, and summary dismissal for breaching the contract by turning up 5 minutes late one day for example would not be fair).

OP posts:
nannynick · 11/10/2011 17:48

allowing, without advance permission, other people into the family home

Person coming to read the electric meter (with electric meter located inside the home)

I would suspect that letting that person in would be reasonable (having checked their ID card).

fraktious · 11/10/2011 17:04

Yep, but I freely admit the situation would be different if we were in the UK. We give blanket consent for quite a few places though.

harrietthespook · 11/10/2011 16:40

Really? Fire them the first time?

fraktious · 11/10/2011 15:29

mra I'd fire my nanny for taking DS to a friends house, or anywhere we weren't okay with really.

My GM includes breach of terms of the contract and our consent is required to take DS places.

Original poster
mranchovy · 11/10/2011 13:13

Ooo Squiffy, they are interesting ones. Gross misconduct should only include things that MUST NOT HAPPEN, not even once. So taking them in turn...

undertaking, without advance permission, any activity which is primarily for the benefit of the employee and not of benefit to the children. This specifically includes taking the children to the homes of friends and family of the nanny

Now I would cover that by explaining the duties and what outings are and are not OK. If there was a problem I would deal with it in a normal disciplinary manner - I don't see it as something that warrants instant dismissal without notice. What do others think?

allowing, without advance permission, other people into the family home

Yes, that should go in

My negligence clause also states that evidence of extensive use of telephone or internet during working hours would be examples of negligence sufficient to potentially endanger the welfare of children (heaven knows if that would stand up in court though)

In that situation rather than negligence you would probably find it easier to prove repudiation (if an employee decides they are not going to do the work they are being paid to do but does something else instead, that may be a breach of contract so fundamental that it entitles you to terminate the contract without notice). But again, would you really need to dismiss without notice for this? It is the sort of thing that usually emerges in a probationary period so only costs you a week.

OP posts:
StillSquiffy · 11/10/2011 10:58

I also have:

  • undertaking, without advance permission, any activity which is primarily for the benefit of the employee and not of benefit to the children. This specifically includes taking the children to the homes of friends and family of the nanny
  • allowing, without advance permission, other people into the family home

My negligence clause also states that evidence of extensive use of telephone or internet during working hours would be examples of negligence sufficient to potentially endanger the welfare of children (heaven knows if that would stand up in court though)

Original poster
mranchovy · 10/10/2011 20:51

Sorry PigFarts, I didn't mean your addition is too wordy, I meant the whole thing Grin

OP posts:
Original poster
mranchovy · 10/10/2011 20:50

Hmm, problem is it is too long and wordy.

Perhaps the definitions would work better split out into the disciplinary and grievance procedures (part of the principal statement) and just summarised or referred to in the contract.

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PigfartsPigfartsHereICome · 10/10/2011 20:30

I like the breach of confidence bit- I have friends teaching English abroad and they like to post pics and vids of the children on FB, I always feel like telling them off.

I would perhaps change the bit about drunk driving to drunk or willfully reckless driving (though that may be covered by the negligence bit?) in the employers car and in employees car if in use for the job, if that makes sense? I've had that in a contract before though I've never driven my own car for work.

nannynick · 10/10/2011 17:44

So this would replace:

Reasoned for summary dismissal include the following

Child Abuse
Drunkenness
Illegal drug taking
Theft

6.3	Misconduct which may be deemed gross misconduct includes but is not limited to theft, drunkenness, illegal drug taking, child abuse and violent or threatening behaviour (be it verbal or physical).

Your version sounds much better and much clearer.
I agree that the insubordination one is probably not necessary given that it would need to be sufficiently serious not to be dealt with under disciplinary procedure for misconduct, plus if it was sufficiently serious it would be caught by the catch all.

My view with regard to the Gross Misconduct section is that it should be clear as to what the employer considers is grounds for being Gross Misconduct rather than being dealt with as Misconduct.

BoysAreLikeDogs · 10/10/2011 17:39

at MrA

as you were