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Paid childcare

Discuss everything related to paid childcare here, including childminders, nannies, nurseries and au pairs.

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Original poster

Would this be considered gross misconduct?

21 replies

Supastoner · 01/03/2011 09:02

I have two daughters aged 21 months and 3 and a half. I've had a 19 year old live-in nanny working with me for 5 months. Most of the time she works alongside me as I don't work, but her contract stipulates that she works one weekend in three and I sometimes go away over those weekends so she's in sole charge of the children. Last weekend I was away and in the previous week, she asked whether her boyfriend could come and stay with her for the weekend. She asked in a way that made it quite hard for me to say no, and initially I agreed. However, after some time thinking about it, I realised that it actually made me feel really uncomfortable especially since he's a fairly new boyfriend to her and I've never met him. I therefore apologised for changing my mind and explained to her that I didn't want her boyfriend coming to the house as I hadn't met him and I felt it was inappropriate whilst she was being paid to look after my children. She was a bit uppity with me but did agree. When I returned on Sunday evening, there were a couple of signs that someone had stayed with her over the weekend. My friend's daughter has keys for my house and let's herself in at weekends to walk my dog. When I mentioned my concerns to her, she said that her daughter had had a problem opening my front door and that she had been helped by a man who was in my house. This was at around 4pm on Saturday. I can only assume that this was my nanny's boyfriend. Can anyone give me any advice as to whether this would be considered "gross misconduct"?

OP posts:

ongakgak · 01/03/2011 09:24

I have no idea, but bumping for you.

I guess you need evidence of some sort?

RealityIsKnockedUp · 01/03/2011 09:26

This reply has been deleted

Message withdrawn at poster's request.

AxisofEvil · 01/03/2011 09:31

You might want to repost on Employment

jendot · 01/03/2011 09:31

Firstly you need to work out whether it was her boyfriend in the house.....

If it was her boyfriend could he have popped over for 5 minutes with some of her stuff? Could it have been her Dad...best mate?

Can your 3 year old be gently questioned?

As she is lives in your home is also HER home and while you def have the final say about who comes and goes from your home I do think that your attitude to her boyfriend seems from your post a little unreasonable....you are TOTALLY right about not letting him stay over and not letting him come round when you haven't met him. BUT you should have arranged to meet him surely...she lives with you...can her boyfriend not pop over ever????

IF she had her boyfriend in the house for a reasonable period of time 'longer than a few minutes' going AGAINST your express wishes and you can prove it then YES it would be gross misconduct.
If she had him to stay for the weekend while you were away and she was working I would be LIVID and would personally sack her on the spot!!

I do also think though that maybe you meeting the boyf so she can see him at the house when NOT working (not to stay over..but to visit) would not be an unreasonable thing to ask...

ConstanceFelicity · 01/03/2011 09:35

Ask her, "Did you have anyone over this weekend?" The if she says she didn't, you know she's lying.

Mum2Luke · 01/03/2011 09:40

jendot - as a childminder I have to have CRBs for all over 16's in my house or come into contact with my children and minded ones. If I had not met her boyfriend I would have said no as well regardless if it was her home or not. She abused her position as a nanny in this case and I would have given a verbal warning.

The safety of the children - and that is what she was and is paid for - to look after them, not canoodle with him. Perhaps if Supastoner had met him a few times before and let him stay while she was there to supervise but I am on Supastoner's side on this one. Safety of the children is paramount to any boyfriend.

Grabaspoon · 01/03/2011 09:44

As a live in nanny I wouldn't have dared ask for my boyfriend to stay over/meet the kids so YANBU.

What does your contract say

Could it be logged as refusing to comply with parents wishes?

jendot · 01/03/2011 09:45

Mum2Luke- thats what I said wasn't it??

nannyl · 01/03/2011 09:50

i think going against any reasonable (and legal) request could be considered gross misconduct. If not gross misconduct, definitely eligable for the 1st verbal warning.

im sure in one of my contracts, there was a clause (in the whats gross misconduct) which basically said not following reasonable & lawful instructions from bosses. Ie if bosses said no and i did it anyway.

Original poster

Supastoner · 01/03/2011 10:03

Thank you all, these are all good points. In answer to some of your questions:

My 3 year old has special needs and doesn't talk so no hope there (which is also why I have a nanny when I don't work - not a sleb unfortunately!)

Her boyfriend lives over an hours drive away in her home town. She goes home one evening a week and all weekend when she's not working so she's never had a need to have her boyfriend here and I certainly wouldn't have stopped him coming here in her own time and when I was here had she ever asked.

The proof thing is really difficult cos I don't see how I can get that. I guess it could have been her Dad but seems unlikely since she asked re her boyfriend and then got uppity when I said no. She also didn't mention anything about anyone being here which I would have expected her to do if it was totally innocent.

OP posts:

nannynick · 01/03/2011 10:24

Why would you want it to be Gross Misconduct? That would mean needing to replace the nanny, is that what you really want to do?

Follow disciplinary process. Investigate, ask her for her side of things, issue a verbal or written warning.

Original poster

Supastoner · 01/03/2011 10:56

I'm afraid I won't be able to leave her with my children again if I can't trust her so I'll have to employ another nanny anyway.

OP posts:

wolfhound · 01/03/2011 11:02

Difficult. But I would absolutely not have a nanny whom I didn't trust. So I think you need to talk to her directly. You pick up a lot from facial expressions etc. If you do not feel you trust her answer, then she is not the nanny for you.

NannyTreeSally · 01/03/2011 11:21

I would agree that it is imperative that you can trust your nanny and if you can't, it's time to hand her the agreed notice in her contract and find a new one! Maybe you could organise to be at home for the remainder of her contract?!

Novstar · 01/03/2011 11:28

If you want to dismiss her, are you giving or paying her notice period? Or do you really want this to be gross misconduct, ie no notice, leave immediately? If it's the latter, you need to suspend her now, because how could you argue that the trust has broken down if you're letting her work?

I would at least ask her what happened.

StillSquiffy · 01/03/2011 12:09

If she has only been working for 5 months you can dismiss her anyway, gross misconduct or not. The only difference is that if it does not fall under GM (and only your employment conduct can guide you - mine has a GM clause that would cover this but your might not) then you need to follow the procedures set out in your contract with regard to serving notice and notice period. For GM you can dismiss instantly without paying notice.

SnapFrakkleAndPop · 01/03/2011 13:11

I agree with squiffy that it depends whether your contract has gross misconduct in it. If it doesn't then you may be better giving notice and either her working it or paying it in lieu.

I also agree with novstar that you should suspend her while you investigate as she could later argue that you knew about it but were happy to leave her in place while you decided what to do.

It could well be gross misconduct and would be in my contract but ultimately it depends what's in yours.

nannynick · 01/03/2011 13:46

The bond of trust has broken down. So if that can not be repaired, time to move on.

So the issue I think is if this is Gross Misconduct or just Misconduct. So if pay in lieu of notice, or no pay.
Unfair dismissal has a 1yr qualifiying period, Wrongful dismissal has none, so look up Wrongful dismissal to check that you are not opening yourself to a claim.

wolfhound · 01/03/2011 14:04

If you're using Nannytax to pay her salary, I think they have a free legal helpline for members that might help you find out if this is Gross Misconduct as per your contract.

Mum2Luke · 01/03/2011 16:38

Yeah, sorry jendot, am having very bad day . I obviously hadn't read your post properly.

mranchovy · 01/03/2011 16:44

Lots of black and white advice here for what is a grey area.

Do you want her to work her notice? If so, it doesn't matter whether anybody views it as gross misconduct or not, you are entitled to terminate her contract by giving the notice stated in the contract as she has worked for you for less than a year.

If you don't want her to work her notice, the easy way out is to pay her in lieu.

If you decide not to pay her, she can claim against you for breach of contract i.e. wrongful dismissal. She can take you to an employment tribunal, and the judge will decide whether her conduct was sufficiently bad that it amounted to gross misconduct. This would depend on a number of factors and could go either way, but damages would only amount to pay for her notice period so the risk is limited.

Note that catch-all clauses in an employment contract such as 'failure to follow reasonable instructions shall amount to gross misconduct' are worthless: if you followed the letter of that then if you asked her to put the milk back in the fridge after breakfast and she forgot, you could fire her without pay or notice! So in practice the courts decide whether the instruction was in relation to something sufficiently material that the breach amounted to gross misconduct - which is the same test that applies in the absence of such a clause.

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