To not pay the childminder

[Surelyunsure21]

Hi all,

I am hoping to get some advice on a very tricky situation. DP and I have always seemed to find it impossible to find good reliable childcare and as a result we have bit the bullet and put both our DC (aged nearly 3 years old and 18 months) in nursery over 3 days. They are due to start next week which is lucky as I start a new job on Tuesday, it is my dream job so I don’t want anything to mess it up.

Previously to this we have had a childminder for the last 10-11 months however she is highly unreliable.. DP started a new job in February and he was hoping to pass his probationary period this month.. since May the childminder has been incredibly unreliable to the point where on the days where he is working from home he ends up looking after the children, in between working. His job is a lot more flexible for this.. my previous job was in a contact centre so it impossible to even grab a drink when it was not scheduled.

The childminders excuses were always legitimate and obviously there would be no payment for the days they didn’t do but we didn’t mind paying.. we’d rather have smooth childcare than none. The one issue with payment and it was a little something was that they insisted on getting paid for bank holidays even if we didn’t need to send the children (which we didn’t) and if we wanted or needed too it was double fee. We never sent them but we just thought the whole process was ridiculous.

So long story short the childminder has been that unreliable in the last few months that it nearly cost my OH his job. They have chosen to extend it for 3 months but he cannot work from home anymore and he basically doesn’t get any privileges for 3 months (it’s better than being fired though)

I’m due to start a new job and he’s in a probationary which should have ended and we’ve just put our house on the market too sell and move closer to my new job so obviously cannot afford for anything to screw it up. I sat down with OH and we rang a few nurseries in our new area and one had space to take them from next week so we signed them up and paid the deposit.

We then text the childminder to advise them that we would not be requiring their services any longer as they have been so unreliable they have nearly cost my OH his job and that as a result of this we would not be returning them in September and we would not be paying anymore money.

If her breach of the contract is worth more than your breach of the contract then I'd presume that in the money claims court you would get some sort of settlement. If you're confident of that then you can wait for her to make a claim against you.

I am happy to say look over the last few months you’ve only worked 38% of your contracted days so we will pay you 38% of the 4 week notice and minus of the 4 days which you have again been off for. This would be £60. She currently owes us over £200 for the 4 days in August she has not worked but been paid for

40% is 2 days a week
September is say 8 days assuming full time
Minus the 4 days you’re owned

Leaves 4 days to pay up.

I think you’ve been quite generous and made her an offer!

She won’t sue, but get you paperwork in order and write down conversations etc you’ve had with her.

It's all very well saying she can sue you. What does the contract say about her responsibilities and what does it say you have to pay her? I'm not sure the £60 calculated works if contracts says you owe a full 1 month of contracted fees but if she's not supplied the required service then you could counter sue for breach of contract which it's probably never going to come to.

I agree YANBU

I just don’t want to pay her for the full 4 weeks minus the 4 days which would be £400 and what if she has been as unreliable as she has proven to be since May and she doesn’t tell us because even though we would be sending the children elsewhere.. the 4 weeks notice period is still days we could send the children if we wished and what if she was off sick or she couldn’t work.

She wouldn’t tell us and then we wouldn’t be getting any of those days back 😕 The fact that my OH nearly lost his job because she has been so unreliable surely must count for something as well.. he’s been put on a 1st warning

Did you express your dissatisfaction along the way to her?

The weekly fee is £180 so should be £720 so 40% is £432, the daily fee is 60 so x 5 days (absence has been 2nd, 3rd and 5th, 24th and 25th) leaves the amount as £192.00

If she was upfront about having to pay for bank holidays, and if she technically is open and offering her service and you're choosing not to send your child in then its fair enough she charges. I don't have to work bank Holidays so i made sure to choose someone who didn't work them, so they'd never be open and charging for them, that's your fault and I expect nursery will charge too.

It sounds like the days she isn't opening you are getting money off of the next invoice, so although appreciate its been really challenging, you aren't out of pocket. Have you spoken to her before about it? Why didn't you look for another setting sooner? I can see why youd leave her, but it's shitty not to pay notice and to try and justify it.

£132*

38% of contracted days is piss poor.

Just say no. If she takes you to court so be it but I cant see it happening as she sounds in breach of contract before you were.

I also think she's self employed - technically/legally I don't think childminders are anymore - they might be classed as employed. But IMO if you set your own terms, set your own rates etc then you are self employed. Self employed people don't get paid when they are sick, the boiler breaks, etc. etc. and an employed person would have already been fired.

Legally OP you owe her the full amount for the notice period. Potentially, you also have a claim for breach of contract for her continued cancellation: depends on the validity of her reasons and the terms of your contract.

I agree that the best approach is to say that you aren’t willing to pay the entire 4 weeks based on an assumption she would be fully available in that period as she hasn’t been for months. If she sues you, you will countersue her for breach of contract. However you would rather avoid it getting that messy and therefore you are willing to offer a settlement of paying her the 4 weeks at the rate she has been performing to date (38%), and therefore £x amount (£y amount having already been paid which she is currently due to refund you).

@LemonSwan

38% of contracted days is piss poor.

Just say no. If she takes you to court so be it but I cant see it happening as she sounds in breach of contract before you were.

I also think she's self employed - technically/legally I don't think childminders are anymore - they might be classed as employed. But IMO if you set your own terms, set your own rates etc then you are self employed. Self employed people don't get paid when they are sick, the boiler breaks, etc. etc. and an employed person would have already been fired.

I would be very surprised if any childminders had any sort of clauses regarding hownodten they can close their settings. Yes it's crap and absolutely doesn't make them a good childminder, and causes a load of disruption for parents; but the only real terms usually relate to not charging if they close, and it sounds like OP essentially receives that money back in the next invoice. That said, I agree its extremely unlikely she would go to court.

How often*

Does she have other kids with her op? I'm sure the other parents also weren't happy about 38%!

I don't think she's being fair about wanting 4 weeks notice when she's been so unavailable. I think you have made a fair offer.

I remember from my childminder dispute (she wanted us to sign a new contract with new dates and we said no. She thought we had to take it and then give her 4 weeks notice) that the childminders union thing only help them recover money if it's over a certain amount. Might be worth finding out what that is and making sure your 'debt' is less than that.

She is self employed and we don’t get invoices. We have a proper contract and it obviously states the days we are sending children and the hours and most months we’ve tried to be good to her by giving her extra days so we have family for one day and I look after them on another day so occasionally like June she hardly worked for Repairs to the boiler etc. & I was given the opportunity for lots of overtime so that month I didn’t get money back because she had done extra days in order to keep the money even though I didn’t actually need her services. I just took overtime after she asked to have them for extra time so the fee wasn’t returned.

I was fed up with all the sending of fees back etc so that month I agreed. I thought it may improve in July but no and that’s when I just said whatever days she is off I am asking for the fee back because it is too difficult fo maintain what with her being off so frequently.

The real hard hit was my other half realising that because childcare had flaked so much he had days were his productivity was so low because he was watching the kids as well that they were extending his probationary period and when we worked it out. We were shocked at how it was

So after that month I stopped agreeing*

Our debt if we owed it would be £420 and that is with taking the 4 days from August that she owes us off and not even recognising that since May she has only worked 38.8% (this is the accurate amount however we’d round it up to 40% for goodwill)

[quote Surelyunsure21]@captainpillows and working 38% of the contracted days since May is not a breach? My OH nearly lost his job which meant there would be no payment anyway[/quote]
I'm confused. You say she has only worked 38% of the contracted days but you haven't paid for more than 38% have you? From your OP it sounds as though you've only paid for what she has done. So the issue seems to be that there are contracted elements you still need to pay which you aren't, such as the notice period. If I'm right about all of that then I think you'll have to pay. Perhaps offer part payment to settle and each walk away on the basis she poorly performed during the contract which is why you've no choice but to end without the notice period (which i presume is right though I'm not entirely clear why you couldn't give notice if she has been under performing so long)

@Surelyunsure21

She is self employed and we don’t get invoices. We have a proper contract and it obviously states the days we are sending children and the hours and most months we’ve tried to be good to her by giving her extra days so we have family for one day and I look after them on another day so occasionally like June she hardly worked for Repairs to the boiler etc. & I was given the opportunity for lots of overtime so that month I didn’t get money back because she had done extra days in order to keep the money even though I didn’t actually need her services. I just took overtime after she asked to have them for extra time so the fee wasn’t returned.

I was fed up with all the sending of fees back etc so that month I agreed. I thought it may improve in July but no and that’s when I just said whatever days she is off I am asking for the fee back because it is too difficult fo maintain what with her being off so frequently.

The real hard hit was my other half realising that because childcare had flaked so much he had days were his productivity was so low because he was watching the kids as well that they were extending his probationary period and when we worked it out. We were shocked at how it was

It was your choice to agree to her doing days you didn't actually require rather than a refund, and to be honest she probably thought in that case that as you'd still had x days over a month you were largely content and okay with shifting things about. Your DH is probably in trouble for not being open about it, if he just hasn't been doing any work and keeping his head in the sand hoping they won't notice im not surprised. Did he have a conversation with them about having to work with the child home as no other option? Obviously it's not ideal, but it's nothing new, especially for many women. I very much doubt you'd have any comeback from not paying her, but seems really crap to not try and come to any sort of arrangement and just swan off.

Sound a bit bonkers if she's done so little of her days! DD is at nursery and she's never missed a day. It's open all year except two weeks at Christmas, no extra for bank holidays (but yes you would have to pay if you decided not to send them that day, just like any other day).

It sounds totally untenable to have childcare that is so unreliable. I can't work out who owes who what, though, but if she's really been so unreliable and has at least been paid for the work she has done, I think she's got a bit of a cheek to demand the proper notice (which it seems unlikely she'll be able to fulfil on her end anyway).

She has only worked 38% of the contracted days which even though some months we had got the fee back. The only month we have asked for the full fee back instead of offering other days has been the fee for August. She worked so little in July that the fee for August was only £200. She has since had a further 4 days off work so owes us 4 days.

Every other month we have tried to accommodate extra days so she wouldn’t lose the fee. For example in May she worked so little that she asked for extra Wednesdays when I am not supposed to be working to cover her fee so she didn’t need to take it out of June’s pay.

She was unreliable again in June though but it got worse by July to the point where she was basically off for the whole month for one reason or another & the fee for August as a result was small to pay those days back. I’ve had my half sister here 4 days this month to watch the children whilst I try and work around them and it’s so stressful.

I got signed off work from stress at the end of the June and through July because it was so bad. I didn’t tell her I was off though because I just thought she would easily keep dropping them. Bearing in mind her notice was usually 1/2 an hour before I was due to start at 8AM

@Potatwoah I’m not trying to swan off without paying anything.. she currently has 5 days she has been paid for and not worked. I am happy for her to keep this and go our separate ways. It is over £250 so she should just accept that otherwise I would be advising her that she will get 40% of the four weeks minus of the 5 days which is £132

Ignore the bank holidays.

For the termination notice, I would offer her 38% of the fee.

Without too much of a drip feed the reason he has got into trouble was that she demanded the children take another COVID test even though they had taken one a couple of days earlier. We had run out and I said they took one a few days ago and do you really need another one doing even though they have no symptoms (she doesn’t make us test) she said she wouldn’t take them unless they had it (her household has all recently tested positive anyway) DP went to get tests.. took them to beds when they wed negative and then set off to work. He started at 10 as he can start anytime between 8 & 10 and then he finished at 5PM in order to get back for childcare. He didn’t approve leaving earlier with anyone but he always logs on and does extra in evenings so one thing he got pulled up for was that.

He knows he should have just asked to unexpectedly work from home but he wanted to make a good impression (obviously backfired 🙁)

@Driftingblue and minus the days owed for August.. so £132?