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Original poster

Nanny pay & contract Problems - Help

109 replies

DawnNAPM · 24/03/2009 13:12

Hi, we have had a Nanny for more than 5 years. In that time she has had one child and returned to work bringing her daughter with her.

We went down the normal route of maternity leave and pay etc and by the time she returned to work, all of my children were at full time school. At this point we agreed to reduce her hours so that she only came in before school each day and after school each day. i.e nothing in between. Her original contract with us stated that her employment was only until all 3 of my children were at fulltime school so rather than let her go completely we agreed to reduce her hours. She also got 4 weeks paid holiday (2 of our choosing) and 2 of hers and at least 2 additional weeks off on top of this as well as all hers and her childs meals whilst at my house, petrol money, and at least one afternoon or morning off a week.

We also verbally agreed that this new arrangement would only be for the 1st year that my youngest was at school and then we would not need a nanny any more. After my youngest child had completed his first year, we agreed with the Nanny that she would stay on a bit longer just to make sure my son was happy but that we would review the situation regularly as we really did not need a nanny any more. She was happy with this situation as I believe she knew she was onto a good thing with us in terms of what we actually expected of her (no cleaning or ironing) and what she was being paid. In fact I got feedback from other local mums and friends etc. who repeated that the nanny had been overheard saying she would never leave us as she was on a cushy number!

My husband and I decided, during half term 2007 that we would review the nanny situation as we were paying a lot for very little (apart from continuity of care) and we agreed that when the nanny came back from the holiday that she had chosen to take during half term !! that we would give her notice and ask her to finish at Christmas. This was effectively giving her 2 months notice.

When the nanny returned from her holiday the first thing she did was to announce that she was pregnant with her 2nd child. This was a bit of a shock as we knew the nanny was in a fairly unstable relationship, with significant money problems etc so we were a little surprised.

However, as a direct result of her announcement we felt it would be unreasonable of us to give her notice as she would never find another job bearing in mind she already had a toddler that she bought to work with her. So we kept quiet and left things as they were until after Christmas. In the new year some 5 months before her baby was due I spoke to her and also confirmed in writing that that we would not want her back once her Mat leave had finished as we were going to get a childminder or find someone for after school care only. I also explained that we were actually going to let her go the previous October but due to her PG we kept her on.

All was going well, mat pay was all sorted and paid to her up front as a lump sum again with written confirmation that she would not be needed back after her mat leave ended.

I though that was the end of it we found a local childminder and all my children were happy. When the Nanny actually left I said we may be able to use her for come casual work when she was ready to return but not in a Nanny capacity but maybe for occasional after school days etc. Also on the basis that I could not and would not want her to bring both of her children with her. At the time she had no one available to look after them so it was a bit of a non starter.

Now the bombshell... (thanks for hanging in there if you are still reading!)

She has now written to me saying her and her partner are hard up and she wants her job back, also that she wants redundancy pay, holiday pay for her mat period and notice pay. To say I feel that I have been HAD is the understatement of the year. Why oh why didn't I let her go when I had originally planned to rather than keep her on to help her out! I have copies of the letters I have sent her which she now claims to have not ever received and she wants me to do the right thing and pay her off....her words not mine. I have provided her with her P45, when her mat leave pay period ended, admittedly a little late as I had forgotten but I really do not see why I should pay her any more money.

It is not my fault she is hard up, I heave treated her fairly for more than 5 years, my oldest child is now 15 and I made it quite clear to her at the start that this would not be a Job for Life etc etc.

I know this post may provoke some debate but I do not think I have been unreasonable and in fact have always paid her for any extra hours, babysitting, generous gifts at Birthday and Christmas and on both births etc. No I need to decide what to do. My husband is adamant that we tell her to go away and to top it all she has been making snide comments to my new childminder that she has "stolen her job" etc etc.

I am gutted and cannot see our family ever maintaining a relationship with her but am in a quandary as to what to do about the pay situation. I have spoken to the redundancy helpline who were useless and also to ACAS who have said that they think I have a case and that if she took me to tribunal I would be treated fairly no one seems to specialise in situations like this regarding nannies as it is unusual.

At the end of the day I did not treat the nanny unreasonably, the fact that she was pregnant did complicate matters but with my children the ages they were I really did not need her anymore and she knew this was the case. I was actually going to give her more than the contracted amount of notice. She could have started looking for another job when I originally wrote to her about it or as soon as she went on Mat leave etc. But now her money has run out she wants some of mine.

Any comments/advice or help would be much appreciated.

Dawn

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tiggergirl · 15/01/2010 09:30

dawn napm
my boss is a partner of law firm and i asked her. if you gave her letters with the notice you promised her and her p45 plus paid her mat money and her job for a nanny is no longer available as you only need childminder now for school pick up only you do not need to pay anymore. her money situation is not your problem and she had the whole time whilst working notice to talk to you but did not so treat it as she left end off you only need to pay redunt if you cant give required notice or the job is still available after she finished maturity

Blondeshavemorefun · 14/01/2010 18:34

hi dawn - glad you finally got it sorted and the nanny may have won the battle but you won the war (i think)

Strix · 14/01/2010 17:05

And have you learned to put everything in writing?

Glad it is over. Incidentally I am AN and have changed my name because... well... I got bored.

Original poster
DawnNAPM · 14/01/2010 15:57

Hi all, once again thanks for all your comments good and bad, free speech is welcome

Now to the outcome for any one that is interested -

We went to Employment Tribunal and her claim for unfair dismissal was thrown out as it was out of time. i.e. she left it too late to claim against me. However the tribunal decreed that in their opinion, a dismissal had taken place and therefore, they deemed that she was potentially entitled to redundancy pay and we would need another hearing. Having taken advice, We have since settled out of court for slightly less than the statuatory redundancy amount.

In court she lied, she cried and she played the "sorry but I'm a bit stupid and don't really understand the question" card, this seemed to have a positive effect on her case and they believed her. She may have won the legal case but morally, the victory was all mine. I got a fair amount of satisfaction facing her across the court room and listening to her lie having sworn on the bible.

Whether you agree with me or not, I was a good employer who up until the point she left treated her more than fairly, she then got pregnant again and told me that she would be unable to return to work, this tied in with our original contract and verbal agreements and my diminished need so we mutually agreed she would leave. I have lost against the system and yes was a little ignorant in realising that a redundancy situation could even arise in the first place. I have learned a lot and am hapy to share any finer details with anyone else potentially affected by this situation.

She hasn't got another job as she is unable to return to work as she has no one to look after her children. . . funny that!!!

OP posts:
OnceWasSquiffy · 10/07/2009 18:58

Yep, any fixed term contract over 2 years confers employment status and will require redundancy upon termination.

Blondeshavemorefun · 10/07/2009 16:34

dont know athene but i did a quick google and think here might mean a fixed contract can only be 2 years or less, then it is a perm job - or else every employer would do fixed term contracts to get out of paying redundancy

"Redundancy pay is also due when a fixed-term contract of two years or more expires and is not renewed because of redundancy"

so from what i gather you can have a fixed term contract up up 2 years and then if over 2 years then the employee is entitled to redundancy

AtheneNoctua · 10/07/2009 15:44

I am unclear about something:

"Her original contract with us stated that her employment was only until all 3 of my children were at fulltime school so rather than let her go completely we agreed to reduce her hours. "

As the original contract stated that it ended upon a particular event happening, doesn't that mean it was fixed term?

I have some sympathy for th OP. I think she was generous and the nanny has turned around and throw the book at her well.. because she can. However, I also feel that the book is the governing document and the OP will have to honour it. So I do think the redunancy should be paid. But, I just thinkg some of the comments on here are a bit harsh.

Also, OP, when you gave her the letter notifying her that the job was ending (the letter she now denies receiving), how long had she worked for you? Was this before or after your third child went to school (the even which defined the end of your fixed term contract)?

lal123 · 10/07/2009 15:33

morally she has just as much right to redundancy as she would have done had you treated her badly.

The issue here has nothing to do with morals - it has to do with your ignorance re redundancy laws - sorry to be blunt.

Blondeshavemorefun · 10/07/2009 15:04

because if you are in a job for over 2years you are entitled to redundancy

in any job

the nanny only wants what she is entitled to

if the op was made redundant from her job she would want what she was entitled to as well

nbee84 · 10/07/2009 15:02

You can terminate a contract for reasons that are in a contract ie. gross misconduct, insubordination, etc etc. not just because you don't want the nanny any more and fancy a change to a different nanny. If you are terminating a contract because you need less hours or are going to change to childminder or nursery, for example - then the job is no longer available and it is called being made redundant.

ilovemydogandmrobama · 10/07/2009 14:51

Why does the OP need to pay redundancy when she gave the (ex) nanny notification? Both sides can terminate a contract given proper notice, so cannot see why it's a redundant situation?

Blondeshavemorefun · 10/07/2009 13:00

dawn - what is the tribunal for?

the nanny was made redundant as you didnt need her any more, and therefore she is entitled and desrves redundnacy pay - just as you would be if you were made redundant from your job

you choose to keep her on when pregnant with no 2 - you could have easily said the job had come to an end

i do understand it is a big payment if a nanny has been there for 5+ years but she is only asking for what she is entitled to

as i said in another thread somewhere, at the moment redun pay is £350 - if all employers put into a saving account via direct debit £7 a week - this would cover the redun pay (while at £350) or could go towards paying agencys fees if nanny left before 2 years

i would like to think that I am worth £7a week to my employers

MissSunny · 10/07/2009 12:58

Message withdrawn

MrsWobble · 10/07/2009 12:57

it's down to the parent to pay

nbee84 · 10/07/2009 12:54

I know that the employer can reclaim 100% of maternity pay (plus a % for compensation for small employers) from the government. So, effectively it costs the employer nothing (except the hassle and stress of finding temp/alternative childcare!).

But, I wondered if anyone knew about accrued holidays during maternity leave? Is this down to the parent to pay? What happens if nanny decides not to come back to work? Is she entitled to be paid that holiday money? My last maternity leave was years ago so I realise that rules change, but when I didn't return to work after having my ds my final payment included accrued holiday pay - though this was for a company rather than a small employer.

OnceWasSquiffy · 10/07/2009 12:13

Have you paid the redundancy pay? TBH if you have paid that part of her claim, then the ET is going to be fairly neutral when you both turn up to discuss if you did/didn't give notice; if you haven't paid the redundancy payment then the ET is going to be leaning in favour of your nanny form the start so you will probably lose on both counts, even if she lies about not receiving letters.

By the way, this will be fairly straightforward for the tribunal: they will have come across this hundreds of times. If you haven't paid the redundancy money then you really should pay it now; chances are she may then drop the rest of the claim, given that you did give her clear notice. at the moment you have done her a big wrong in not paying redundancy and she is just pushing it for as much as she can get. Not honourable, but TBH you were in the wrong in the first place.

You may not like it that you have to pay redundancy, and you may think it unfair, but it is the law and it is very clear cut.

nbee84 · 10/07/2009 08:32

AngelNanny - maybe the boyfriend is controlling but really I think he's probably only pointed out to her what she is legally entitled to. If she was told that the job would not be there after her maternity leave - or even if she was told in March (or May?) that the job was no longer there then she was being made redundant, and so legally entitled to redundancy pay. Being paid her maternity pay is not the same as redundancy pay. She would actually be entitled to both if the job was not going to be there at the end of her maternity leave.

I feel the employment tribunal will sort out when the finish date actually was and award redundancy payments up to that date.

AngelNanny · 10/07/2009 02:06

How awful for you Dawn - nanny is hossible and possible controlled alot by boyfriend. I hope it all goes well for you and that you win.

Do keep us updated if you are happy to

Best Wishes xx

Original poster
DawnNAPM · 09/07/2009 14:14

Just to update you all. This issue has now progressed to an Employment Tribunal and I am waiting for the date of the hearing!

Thanks for all your comments, good and bad.

I am not expecting to win as all parties I have spoken to for advice have never come across this sort of employment issue before, even ACAS! Even the Tribunal forms do not cater for this situation, asking questions like
"What is the nature of my business",
"How many people do I employ"
"What locations do I operate from"

Err, I don't have a business, I don't employ anyone, and have no locations!!! No really appropriate questions methinks!

The whole basis of the Nanny's case is that I did not give her notice or notice pay, when in fact I did in March & May last year. She is claiming to have not received the letters even though I handed them to her in person and we sat down and discussed it. Bit of an integrity issue there.

Dawn

OP posts:
WideAwakeMum · 28/03/2009 21:53

This reply has been deleted

Message withdrawn at poster's request.

flowerybeanbag · 26/03/2009 19:24

'Tis a shame, yes. One of the things that put me off using them to do my nanny's payroll - I had a flick through their website, found a few corkers and lost all confidence! That and the fact they were most expensive...

Blondeshavemorefun · 26/03/2009 17:52

point noted flowerery - its a shame nannytax hasnt got their facts right as thats where nannies get their info

mummyp - think flowerey is saying the most you would pay is 350 per year regardless of how much they earn

so a nanny would be worth £6.73 a week

theoriginalmummypoppins · 26/03/2009 15:33

Most nannies earn more than £350 gross a week..........

flowerybeanbag · 26/03/2009 12:53

Blondes I would avoid posting links to Nannytax website for anything employment law related if you can; more often than not it is out of date and/or inaccurate ime.

Redundancy pay, now capped at £350 not £330.

HSMM · 26/03/2009 12:46

But isn't statutory redundancy pay less than actual pay? so the 5 weeks pay mey not necessarily be 5 full weeks, but 5 statutory weeks? CAB, or ACAS should have the figures.