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Am I being too harsh with instant sack?? A bit long

34 replies

ducati · 26/01/2011 17:09

We have had our nanny for about nine months, and I have witnessed a steady decline in performance. First less and less kids stuff done in house, less proper cooking, then more recently, and more worryingly, my dcs (9 and 7) appearing less happy with her, and nanny being increasingly kind of stressed and sharp with them.

Because I am really terrible at nipping things in bud, hate confrontation etc it took me weeks to summon up courage to have a "Look, this is what I need you to do, and I'm worried about this etc" conversation and I eventually decided I would do it this morning.

However yesterday evening my 9 yr old revealed that he had not been picked up at end of school as explicitly directed that morning by me several times (as he was a bit anxious about friend issues that morning and I didn't want him having to hang around in playground, being taken off to homework club etc). He ended up gg to homework club because she was 20-25 minutes late. Nanny didnt mentioned this to me or DH who was there in the evening and it slipped out casually from ds. Other things kids have said suggest they are no stranger to homework club until she gets there late. (she starts 1pm so she has plenty of time to get stuff done and get to school on time)

i felt this crossed a line and i have totally lost trust in her. she had no explanation when i asked what was going on and why she was late -- just "i don't really know what to say. I have no excuse".

For some reason, instead of feeling effing furious with her that my poor boy was left standing in the playground wondering where his nanny was (well i am feeling that too), I am feeling guilty and crap mother that i didnt address the lesser issues far earlier to give her a second change, because now I don't want to give her a second chance. DH far more hard line and thinks no question she's now totally blown it and wants her out. She isn't bad, just kind of vague and a bit lazy. am i being unreasonable???

OP posts:
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StillSquiffy · 27/01/2011 10:29

Sorry, chipping, but being lazy, letting standards slip, having nanny being stressed and sharp with the children and having her not fulfil her responsibilities (and then refuse to give an explanation) would not add up to my definition of a competent, engaged and trustworhty employee.

Ducati I personally would give her a written warning and tell her that if she does not pull her socks up and address all of the issues you have wiht her immediately then you will dismiss her. But if you decide to let her go then you need to take action to dismiss her BEFORE she has passed 11 months of employment (so that the notice period - presumably four weeks - does not take her over the 12 month hurdle). After 12 months you could still dismiss her, but would need to go through a fomrla process with additional warnigns, meetings, etc and document everythign carefully and give her a chance to improve. You could alternatively make her redundant without having to pay redundancy, but you could only do this route if you have decided instead to change your childcare arrangements (eg to a live-in, or au pair, or club).

freshmint · 27/01/2011 10:37

I would sack her if you don't trust her.

I think the combination of (a) not picking up the child at the time instructed for no good reason and (b) not telling you about it would, for me, tip the balance in favour of it being gross misconduct. I know nanny nick disagrees with this and he may be right but I think it is certainly arguable.

If it was me, I would pay her her contractual notice and find someone else (and probably keep her on while I was looking if that was at all feasible - if not, not). But I wouldn't keep her. You need to like and trust your nanny, and you don't.

xx

CAS77 · 27/01/2011 10:43

I'm an employment lawyer, so I'll give you my brief professional opinion...

The first point is that an employee does not accrue the right not to be unfairly dismissed until they have acquired 1 year's service. In this case, your nanny does not have this, so, on the face of it, she would not have the right to bring the claim and you could simply dismiss without providing a reason or following a fair process. However, there are limited circumstances in which employees can bring claims for unfair dismissal without a year's service (I don't have time to list them out here but if you Google it I'm sure you will find it somewhere). I doubt, however, that any of those exceptions would apply. But, the other thing to be very careful of is claims for discrimination, for which no length of service is required. Potentially, she could argue that she was dismissed for a discriminatory reason (she would obv. have to identify such a reason and have a reasonable case) and bring a claim on that basis. Damages would be assessed in must the same way as for unfair dismissal plus she could get an injury to feelings award.

So, for those reasons, it is usually a good idea to try and identify a fair reason for dismissal and follow some sort of fair process prior to dismissal, even where an employee has less than 1 year's service.

You had performance issues (household duties, cooking, general attitude etc) with her that you haven't yet addressed via a formal process. Accordingly, these matters shouldn't really form any part of your decision to dismiss on this occasion. In order to dismiss for poor performance, you should notify the employee of the problems, discuss the issues with them and give them a reasonable opportunity to improve.

In fact, your grounds for dismissal are nothing to do with her performance. Instead, it is the following:

(1) Her failure to follow her employer's reasonable instructions (to pick your child up from school at a certain time) without any reasonable excuse e.g. if she had been in an accident or something and couldn't get there then obviously it wouldn't be reasonable to sack her for failing to be there.

(2) The consequences of that failure, potentially placed your child in danger. Okay, he had his homework club, but, how was she to know he would go there? He could have wandered off anywhere really. You are paying her to take care of your child between certain hours and she failed to do this without good reason.

(3) Furthermore, she compounded the issue by failing to report it to you. This is arguably a dishonesty offence (although there is some caselaw which says that employees are not obliged to report their own breaches of contract to their employers).

In my opinion, this amounts to a serious breach of the implied duty of mutual trust and confidence that exists between employer and employee. I would be fairly confident that her behaviour constitutes a "repudiatory breach" of contract i.e. so serious it permits you to terminate. However (disclaimer alert!!) I obviously don't have all the facts and am basing this on what you have said, so, to be absolutely sure of your position, you really should consult a solicitor or a CAB before dismissing her. Okay, it may cost £150 or so but it would be money well spent to have the confidence in yor decision.

In terms of process, I would suggest you write to her setting out the the "allegations" (not the performance issues as these are not part of the dismissal decsion). Invite her to a meeting to discuss. Allow her to put her side of the story - you need to bottom out the issue of (i) was there a reasonable excuse for not being there (I know she has said there is none but you need to establish this "formally"); and (ii) why she didn't report the incident immediately too (this will be much harder for to explain away). Then tell her you need to think about it and you will let her know your decision shortly. Then write her a letter confirming her dismissal. You do not need to pay notice for gross misconduct offences. However, she may have a go at you for wrongful dismissal (i.e. try to claim her notice money at a Tribunal aruing that the offence did not constitute gross misconduct and she was therefore entitled to her notice money - she can bring this claim regardless of her length of service). Therefore, you might be minded to just pay her her notice money to get rid of her relatively quietly.

Whilst all of this is going on you could potentially suspend her on full pay (although it would be safer to do this only if your employment contract allows - if it doesn't then there are risks associated with doing so, although, if you have really lost faith in her, then (speaking as a mother rather than a lawyer) I would take that risk.

Hope that helps.

ducati · 27/01/2011 12:37

I am surprised lawyers remain in business with the calibre of free legal advice on here, and btw many thanks to all who have posted.

In the event I don't even think legal situation it is going to be an issue. her attitude last night when we had our final talk was very much "i know i have blown it", and she could not account for why she was half an hour late for school pick up -- just said "i have no excuse" and was very unwilling to reveal exactly where she was at 4pm. i started to wonder if she has had another job or something. she admitted she was often 10 or 15 minutes late which is pretty dire given she starts early afteroon, well she is paid from then and is meant to be here, so has masses of time to spare.

btw in case it was unclear, there was never any question of children going to homework club. she works five days a week and knows she has to pick them up at normal end of school day. i just discovered when talking it over with my children they were ending up there when she didnt show up on time -- unbeknown to me.

anyway many thanks again for all thoughts keeping all this top dollar legal advice for future reference. Oh Lord, back to the agency again,......

OP posts:
monkeyflippers · 27/01/2011 13:04

She needs to go.

wrinklyraisin · 27/01/2011 13:36

Chipy, the Nanny had been ASKED not do to something. She went ahead and did it anyway, with no decent excuse. A good nanny-employer relationship hinges on trust. If you can't TRUST your Nanny to do the job YOU ask her to, then it won't work. I would LOVE to have my charge spend extra time in playgroup etc, I work 70+ hour weeks and have no time for myself at all. But I am hired to do a job and to do what my bosses require of me. If I put my own needs above my job, then yes I would expect to get fired.

Laquitar · 27/01/2011 13:46

I think you are right to be angry.

I actually find her response bizzare. She didn't even give a reason. Is she ok? (personal crisis, depression, drugs?).

Or perhaps she is not very interested in the job in which case getting rid of her wont even upset her.

Blondeshavemorefun · 27/01/2011 17:43

so the nanny wont say where she was/why she was late

sounds dodgy to me

nannynick · 27/01/2011 18:27

It does seem rather strange behaviour from someone you are paying from 1pm. Wonder if she ever gave your children an excuse for why she was late collecting them.

Good luck finding replacement childcare.

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