WWYD - pregnant nanny

crackberryaddict I think if you are going to be so specific you should point out that the 'probabtion period' label is only relevant to the terms of the contract and any claim under it (eg for wrongful dismissal).

Normally during the first year of employment this is enough, however, it is my underdstanding that a claim for unfair dismissal alleging discrimination may be brought at any time. And the burden of proof under the Sex Discrimination Act is that the employer must demonstrate that the reason for termination of the contract was not discriminatory.

Whilst I agree that the the course of action you suggest may be the best, because of the care that must be taken in avoiding a breach of the Act I think it is misleading to use the words 'a getout which is no different for a pregnant employee'.

Oh the 'shall I' was short for 'shall I take Strix up on comments like "the nanny has not put the pregnancy news in writing and therefore wouldn't have a leg to stand on in court since the employer could say she didn't know"' .

nannydilema you havent replied yet

would you want a nanny with own child?

what are your odd part time hours?

Shall you what Mr A ??!!

I think this is a very difficult situation. I am a lawyer and 2 things worry me. First the terms of the offer letter but also the discussion at interview about the nanny wanting a long term position. Presumably this came about as the family said they wanted a nanny to stay. Issuing a fixed term contract would not be consistent with that and the pregnancy would be the obvious reason why its been done.

I would be considering at this stage whether I would be prepared to allow nanny back to work with baby and be having that discussion now. It maybe that this is a deal breaker for her and the problem may go away. I personally would not have a nanny with their own child.

Second a job offer is subject to the terms and conditions of employment being agreed through a contract. My nanny contract has a 3 month probationery period in it during which the disciplinary procedure does not apply and both sides can terminate without giving a reason on one weeks notice. I personally think this is very important with a nanny. Sometimes the personality simply doesnt fit and for the sake of the family you just have to part company.

I would be making sure that is the case here. If she is a fab nanny then you will put up with Mat leave etc as it will be worth it. If she isnt then you have a getout which is no different for a preganant employee than one who isnt.

If she is not happy with this term then she can refuse the job.

HTH

Shall I?

i like strixs soultion of fixed term contract, which surely it would be if op doesnt want the nanny to come back with her baby, therefore once ml starts,op can find a replacement nanny

on the other hand,i did say in my 1st reply,that if the op days/hours are odd, and she likes this nanny, to then consider the nanny bringing her baby with her and to return to the job

legally a woman doesnt need to tell her employers that she is pregnant till 15weeks before due date, ie 25weeks into pregnany here

i think the nanny was being honest and didnt need to tell you for another 10weeks or so if she is 16weeks

she isnt asking,nor will you have to pay smp, and she is willing to start,so take a chance on her and see

weird/odd hours/days are always hard to find nannys for

"let alone the fact that they are different terms to the ones you offered them a couple of days previously"

But, that is just it, MrA. There is nothing different. There is no change. I did suggest a fixed term contract only if she had not already offerred otherwise.

And, since you are addressing the legalities and who can prove what, the nanny has not put the pregnancy news in writing and therefore wouldn't have a leg to stand on in court since the employer could say she didn't know.

However, I take your point that it might look a bit dodgy to have the term end on or around her due date. Perhaps OP would be better off going with a standard round figure, say 6 months.

I would like to say again that this might all be workable and OP might want to take on nanny and her "maternity leave" in exchange for a nanny who wants to work the hours she wants to offer. So, I think discussing tribunals and court cases might not be the OP's oreferred approach.

Why Strix? Because the law says you cannot treat anyone differently during a recruitment process because they are pregnant. And if, after you find out someone is pregnant you offer them terms which are geared towards their pregnancy (let alone the fact that they are different terms to the ones you offered them a couple of days previously) then it is trivial for them to prove on the balance of probabilities that you changed the terms because you found out they are pregnant.

The ACAS helpline may also be able to give you some advice. They deal with employment issues on a very regular basis, advising both employers and employees. They aren't legal advice though, so if it comes to needing that do contact a specialist employment lawyer.

I would second what Strix just wrote. I am sure that everyone on here means well by offering you advice but the only piece of advice I would give is that you consult a lawyer and show him or her your offer letter. My sense of natural justice says that there ought to be a way out of this but if you make the wrong move, it could potentially end up being very expensive as well as a protracted hassle. Good luck!

Perjury? What in the court of MN?

Incidentally, OP, I am not a lawyer and not qualified to give legal advice. So, please do check this out with a solicitor or some kind of proper employment advice. But, I still don't see why you can't give her a fixed term contract if you haven't already offered her otherwise in writing.

Lots of people have fixed term contracts and I can't think of any reason why a nanny would be exempt from that possibility. And, of course, I suggest this only if it is legal.

But, before we get hung up on technicalities, you might think about have much of a burden the mat leave is. As she is going to get any mat pay, she may very well want to come back to work very soon and she may turn out to be long term dedicated employee. I have never had a pregnant employee. Some others on here have and could advise better how it worked out.

Oh, and now you have found out she is pregnant, despite already making an offer and confirming it in writing, and despite the fact that you need childcare after a date you have magically pulled out of the air that just happens to be just before this particular person is due to go on maternity leave, you have decided to make it a fixed term contract? And this is in no way related to her pregnancy?

So now as well as discrimination you are on your way to perjury - are there any other offences you would like to be taken into consideration?

Are you sure, Squiffy? I would have thought that if you have not discussed whether the position is permanent of fixed term then you are free to go either way. Of course potential nanny is also free to decline job.

For me, the biggest problem in this scenario would be the mat leave cover. I wouldn't mind that she was pregnant. I probably wouldn't mind her returning to work with a baby assuming she could still do the required activities. And, if I had odd hours that were hard to fill, I might find this worked out well all round.

Gosh Mr. A, aren't you delightful this evening. I did not say anything discriminatory. In fact, I believe I have defended the nanny in several ways on this thread.

And, also, nannies are not for working "mothers". They are for working parents.

Ah, checked back and you are right of course Squiffy, the exception I was looking at was repealed in 1986. Not the first time I have looked at 'original' instead of 'revised' statute - I must get a manual.

So, as you were, the offer must stand (if the job still exists), and don't even think of changing or adding to the terms of the offer because this would by definition be direct discrimination.

Is that right Squiffy? I agree it doesn't apply to dismissing for pregnancy, this and other maternity rights are conferred by the Employment Rights Act 1996 etc.

But AFAIK all the other relevant acts refer to the rights of employees, and until you actually start work you are not an employee of that employer - and this is the situation the OP is in.

I have asked for a confirmation on the employment law forums, but I am not holding my breath as that is always a bit of a desert.

The exemption from the sex discrimination act only applies to the right to advertise only for one sex or the other, not to dismiss someone for reasons relating to pregnancy. I think it was all redefined a few years ago.

Do please say hi to the missus, by the way, MrA

If you advertised for this position with an agency or on the net and did not specify a fixed term then you would probably be slaughtered in a tribunal if you tried to write a fixed term contract.

TBH this is something you will just have to deal with. I would advise trying to make the best of the situation and think positively - if you are looking for odd, part-time hours, this might fit in perfectly with her own plans once she has the baby (which of course you do not need to allow her to bring with her). Odd quirky hours are difficult to fill and it could suit you both long term.

Good grief Strix, it is hard to think of anything more discriminatory than what you suggest!

However, I am going to have to wave a big flag here and say that I am wrong. I completely forgot about the domestic employees exception in the Sex Discrimination Act.

So you can tell her she can't have the job after all.

Interesting isn't it that a class of employers that are nearly all working mothers themselves is one of the few groups that are entitled to discriminate against working mothers? That doesn't make it good practice though.

What strix said...great solution. That way she gets her job while she is pregnant but you are not obliged to keep her through her maternity etc
Not strictly legal or morally correct Im sure. But would work for me!!

Why now write a trial period into her contract? Then you can see what she's like - if you/your DC don't like her, you can get rid on that basis. But if you think she's good, you could keep her on.

sorry, CORRECTION:

And to be perfectly honest, if I was pregnant and I needed a job, I wouldn't tell you because of course I wouldn't get the job.

And to be perfectly honest, if I was pregnant and I needed a job, I would tell you because of course I wouldn't get the job. So, I wouldn't hold that against her. And, if she told you and was not required to, then I would appreciate her honesty.

Off top of my head think they have to tell you 15 weeks before the EWC which would then be 25 weeks pregnant, assuming she's about 16 weeks then no she had no obligation to tell you.

She won't be entitled to SMP as blondes already said you have to have worked 2 weeks before falling pregnant, something like 42 weeks before the EWC.

There is a simple solution here. AS you have made a formal offer, you must honor it. But.... (and someone is going to shoot me for saying this but it is perfectly legal) if your offer does not explicitly say you have offered her a permanent position, write the contract for a fixed term position and make the term end when she wants to bugger off on maternity leave... say 2 weeks before due date? Then, you are under no obligation to save the job for her until her return from "matenity leave".

You will have to accommofdate her pregnancy with things like H&S asseessment, ante natal appointments, etc.

And, to be honest, I think she had to tell you if she is 4 months pregnant... can't remember though when you are requred to tell your employer and hand over that MATB whatever it's called form. But, I think it's around 4 months.

Anyway, just write a fixed term contract and you are largely off the hoook.

Let me reprase that: it would be unlawful to withdraw the offer for a reason related to her pregnancy. It would not be unlawful to withdraw it if the job is no longer available, because for example you have found a nursery or childminder place for your child.

It's too late not to offer her the job - and as others have said, it would amount to discrimination if you withdraw the offer. She doesn't have to tell you yet (quite - I am trying to remember the deadline and can't)

You're a bit stuck, I think. Is she well plugged in to the nanny network - might she be able to help find her own maternity cover?

Another thing to consider - why is she looking for a new job at 4 months PG?