Childminders and Sick pay

Thanks for clarifying that, I was under the impression (that I got from an NCMA person) that if you were a member you had to use the contracts.

But thats useful info, cos quite frankly they are expensive and a bit pants, I think I will look into doing my own instead.

Just to clarify:

The NCMA contract does not need to be used in all cases. Membership and insurance cover is not invalidated in the event of a non-NCMA contract.

Where there is an exception is on the Legal Representation where the use of a non-NCMA contract means that they cannot support you in the event of a contract dispute in excess of £150 - all other areas of Legal Representation are provided. So they will support you in a claim of less than £150 and in the event that it is more, then the Small Claims Court is available.

I agree with Millenium re: the one size fits all contract, doesnt always work as individuals requirements are unique.

NCMA members however have to use NCMA contracts to validate cover and membership. I take the point that if both sides alter the agreement and both choose to sign it then for them it is valid and enforceable, but I still feel that if a clause is added (written in) that contravenes the T&C's on the contract that NCMA have stipulated that it's members follow, the minder will have issues should their be a dispute and NCMA / Insurers may turn around and say that the contract was not completed properly, therfore we won't help / cover in this instance.

popem have you contacted NCMA and asked them about the changes your CM wants to make?

One of many reasons why I find NCMA contracts try to be a "one size fits all" but fail.

I strongly believe that childminders should draw up their own contracts to suit their setting and business offering. I do not know where one stands with amendments to NCMA contracts but presumably like normal contract laws, if the amendment is approved and signed by both sides then it can be varied as much as both sides are willing to agree and is therefore enforceable. Having found some years ago that I was needing to make more than just one or two amendments to NCMA contracts, I turned to writing my own.

However, you cannot be expected to sign a new contract just because the minder wants to force through a change - a contract should be looked upon as a mutual agreement - if you do not like what she wants to amend, she will presumably serve notice (unless you get in there first!) so you will only have the notice period (of whatever is in your contract), to endure this situation.

Ok so I've had a look at the T&C's on the NCMA contract,

section 17 states "Registered Childminder sickness / occasional days off - charges No fee or any other amount is payable for, or in respect of, any time that the contracted service is not available, other than times negotiated under note 18."

Note 18 refers solely to time taken off for holidays - Not Sickness -

So if I were you I would point out this clause, I see you have already noticed it and tell her plainly that if she writes sick pay details into the contract it would be in violation of NCMA T&C's, therefore unenforcable anyway, (IMO, but I'm probably right I reckon no doubt someone a lot cleverer will come along and confirm)

This is what I save my emergency and very limited "sick days" for... when ds is ill. I don't even stay home when I'm ill. I have only 10 for the year and need to only use them for when he needs to be home. Hence, why they can't be wasted on when my cm is sick and I use a back-up, who I pay instead of the cm for that day.

I suppose its not wanting to take time off because of child care issues isnt it. but I can assure you it happens all the time..

Why would someone send their dc when they are obviously ill and probably just want to be at home with mummy/daddy?

love PIPPINS post, how many times have cms had a child foisted on them with the words,'they have been a bit off but seem fine now' further investigations reveal child has been up sick all night,has a temp or a really bad cold...

then you and your own dcs catch it and you dont have time off because you cant afford it as you arnt paid sick pay.. unlike most parents....

however like most cms I dont charge for my sick days or holidays...

I think if a parent sent in a sick child when they should not have (48hrs exclusion ignored) and then that CM had to close, then the parent should still pay.
Otherwise, NO, CMs should not be charging for sick pay.

Sorry - to clarify. I meant that you can't pay when you don't send your DD because of her own sickness or holidays (not to include your own dd's sickness and your own holidays).

I agree with muddleduck. Just tell her that you can't cope with paying her and someone else if she isn't available. And that you can't pay when you don't send your DD.

Also, I'd keep her in the nursery. 4 months is a long time! Are you paying her for any of that holiday? I hope not.

It's quite bold and quite frankly, grabby, of her to ask you to pay for days when she's not offering a service.
We're having difficulties with our broadband at the moment and the company is refunding our account for the amount of time we have been without it. Simple. You don't pay for a service you're not getting. Especially when it means you have to pay someone else to cover.

I think what chiodminders often forget when asking for sick pay is that those of us who are employed don't get sick pay anyway for the first 3 days and even after that is is a paltry small amoutn not related to our usual wage.

but no, to my mind a self employed person should not charge for when their service is unavailable and I woulc not enter into a contract with any one or organisation that expected that.

Dh is self employed he has taken out insurance to cover long term sickness but during some recent bad bouts of tonsillitus he just had to cope.

A number of years ago our CM asked for sick pay (and holiday pay) instead of a payrise. This was completely fine by us as we would happily have agreed to a payrise and averaged across the year these two options cost us approx the same.

I think you are slightly missing the point about getting tied up with the legalities of it all - either you are happy to pay her a bit more (on average across the year) or you are not. Your choice.

If finances are tight and you don't want to agree to this then just say to her that you can't cope with the potential of having to pay two sets of childcare costs if she is ill. IMO this is a far more honest and helpful response than to bombard her with technical evidence about why you are not allowed to.

I wouldn't agree to sick pay, it is too much of a risk to you.

Your childminder is self employed, she should work out her rates to reflect that, ie when setting her rates she should have looked at income and expenses and factored in some time off for sickness.

My childminder went off sick last year for nearly two months after returning from a 3.5 week holiday and then demanded two weeks holiday when she should have returned to work as she "hadn't used her entitlement".

It was a long drawn out row to get the money back for her sick leave and to make her uderstand why it wasn't possible for us to accept this.

There was no provision for sick leave in her contract, she has since given us a new one stating that she will be paid for any time off sick. We haven't signed and are looking actively for a new childminder.
We have no holiday left though as we had to cover a lot of her time off.

We know now that she wasn't ill for a lot of the time she was off.

Agreeing to uncapped sick leave puts you in a risky position in my opinion.
It was hard enough for us without a contractual requirement to pay sick leave.

check the contract, if you signed and it says you pay, then you pay, if not then not..

simple.. but a good reminder, always read line by line what you sign...

You don't have to pay her when she is off sick unless you have agreed to in your contract. If she is trying to change the contract, then don't agree to it. If you have agreed in her contract, then you should not really question it. If you have agreed to pay her for time when she is not available (regardless of whether it is sickness, or holidays), then you should. This will not mean you have employed her.

I agree 4 months off is a long time and you should think about what childcare you need in future and certainly what contract terms to are prepared to agree to.

I am not trying to criticise you, just trying to clarify what is in the contract and what you might want in future. If the contract does not specifically say you pay when she is not available, then don't pay.

Your CM is on holiday for 4 months! Hmm, why would you go back to them? Your DD will be settled in nursery by that time... So do look at if returning to the CM makes sense.

The law regarding employment status is quite obscure, a tribunal will look at many factors to determine whether in their opinion someone is employed or self employed. Some of the things they look for are:

Who dictates the working time / days / holidays.

Does the person have one client or several.

Is the person bound by specific requirements (ie, do you require a uniform to be worn etc)

Who provides equipment / materials for the employment to be carried out.

Childminders also have special concessions with HMRC, as some only do care for mindees from one family, in this instance they would still retain their S/Emp status.

your CM is on holiday for 4 months!

The bitchy bit of me thinks that if she can afford a 4 month holiday, without pay (I'm presuming that you are not paying) then its a bit cheeky to ask for sick pay. But then I'm probably just .

I'm also finkin that your DD is going to get mighty confused, 4months is a long time to be away from the minder, she will be settled in nursery by then. Frankly if any of your CM's parents can manage without her for 4 months then they don't really need childcare and if they are struggling then its not a great service that she is offering.

I also agree with DYSGU you sound very resentful - and I would be too - do you really think that you can continue a working relationship when she returns?. Also have you contacted NCMA for clarification they are very helpful and although a minder org their advice is non-biased.

"HMRC said if I pay her sick pay (which is a benefit of employment) then I become her employer"

HMRC must have that wrong, as there are many more factors at play which determine Employment Status - as we have previously established when talking about if Nannies can be self employed. HMRC are surely not saying that it's just about if someone is paid some form of sick pay which determines employment status.

Maybe you had phrased it wrongly to HMRC. To me it's charging for a service which isn't available. I.e. a charge is made by the Childminder when the Childminder is unable to care for your child (or hold your child's place open).

Ultimately I feel that parents sign a contract. If it is felt that the contract is unfair, then they should try to renegotiate it's terms and if an agreement can not be reached then terminate the contract under the termination terms.

My experience of two (wonderful) CMs over the past 3+ years is as follows:

If the CM is available to care for my children then I pay even if I opt (for any reason) not to send one/both.

This has happened if one/both is ill, has been ill with anything contagious (and would also include D+V but neither has ever had it!) Is also the case if either I or DP has a day off work and opts to keep children home to play!

If CM is not available due to either her own sickness or that of her DC then I do not pay. In this situation DP has to take emergency leave to cover as we have no other option. (I am a teacher and emergency leave is very hard to get!)

Regarding holidays - CM closes for 5 or 6 weeks a year and does not charge for these times as she is unavailable to care for my children.

When I take holidays (for 13 weeks a year as my DDs do not go at all during school holidays) I pay a 50% retainer to hold my place for after the holidays.

I do not object to paying the 50% retainer but I would think VERY hard about paying someone when they were not available to care for my children thus requiring me to find alternative emergency care.

These have been the contract details with both my CMs and they have both been marvellous (and current one still is!) However, we knew the t&c's going into the contracts so I would think, had you agreed to pay then you either need to pay or to re-negotiate the contract.

I would not be able, personally, to leave my DDs with someone I resented paying - we pay a huge whack of my salary as it is and feel we get our money's worth and more.