Please or to access all these features

Add post

Watch this thread

Save thread

Start a new thread

Flip thread

Hide thread

My feed

Active Unanswered threads

Getting started FAQ's

Unanswered threads Acronyms Talk guidelines

Hide shortcut buttons

Talk

Paid childcare

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

Flip

Original poster

Do I need to pay my (recently fired) nanny a severance pay?

18 replies

mumwithbumandtum · 25/05/2011 13:58

Please help. Yesterday following almost 6 months of being let down on an increasingly regular basis by my nanny, I called it quits and called her to let her know I wanted to draw a line under everything and move on. I would have done this face to face but she had texted to say she couldn't make it that day. The problem being her car is constantly letting her down and she would text or call on the day she was supposed to be with me, asking to swap days or not being able to come at all. Lots of offers of working for free to make up for this never materialised as I couldn't possibly ask that of anyone. Crisis point hit over the last 10 days when in preparing for my baby;s christening she couldn't make it until the Friday, then on the Christening itself, texted to say she couldn't make it as her car had, guess what, broken down again. She did make it and that was great, we had a chat, I said this couldn't go on, she agreed. Then yesterday, she texted saying her car had broken down again. I wanted to scream. Instead, I figured out alternative childcare, and called her to say I was letting her go on the grounds of being completely unreliable and taking the mick.

I felt dreadful (cried), she is an amazing nanny with the kids - very very talented and they love her. I wanted her to come back and say good bye, I wanted us to leave things on a good note and stay in touch (and maybe if she got a new car, we'd start again..). Anyhow, she texted this morning asking for severance pay. What are her rights and what is morally right? How much should it be - I agree there should be something but we also feel incredibly let down that for months she has slightly treated us like a hobby and has continually left me in the lurch. What is the balance? Please help!

OP posts:

Are your children’s vaccines up to date?

Set a reminder

harrietthespook · 25/05/2011 14:03

Are you in the UK?

sleepingsowell · 25/05/2011 14:06

Have you got a contract of employment for her?

MovingAndScared · 25/05/2011 14:06

and how long has been working for you in the uk?

TheCowardlyLion · 25/05/2011 14:10

What period of notice did you give her? If you want her to leave straight away, you may have to pay her in lieu of notice.

Insomnia11 · 25/05/2011 14:12

What does the contract say?

TheCowardlyLion · 25/05/2011 14:12

This from the CAB advice guide to rights at work:

Pay in lieu of notice
If your employer has dismissed you without giving you the notice you are entitled to either by law or by your contract, your employer should pay you in lieu of notice. ?In lieu? means ?instead of?. This is also called severance pay. The only exception to this is when you have been dismissed because of gross misconduct.
For more information about gross misconduct, see Step five: is the reason for dismissal one which isn't automatically unfair, in Dismissal.
The amount of pay in lieu of notice you should get will depend on how much notice your are entitled to. You should get pay in lieu at the rate of your normal wages. For example, if you are entitled to four weeks' notice, but are only given one, you will be entitled to three weeks? pay in lieu of notice. You may be entitled to more than this, depending on what your contract says.

harrietthespook · 25/05/2011 14:15

We don't know she is in the UK yet. "Severance pay" is a US expression.

nannynick · 25/05/2011 15:49

Your location. What it says in contract. If it's Gross Misconduct or not. These will all make a difference.

So, what country are you in?
What were the contractual terms specifically dealing with termination of the agreement?
Have you followed disciplinary procedure with regard to the late/not arrival? For example, were any written warnings issued?

Also, what do you feel is morally right to do? Consider also what you will be putting in a reference - what is the reason for them leaving your employ?

nannynick · 25/05/2011 15:58

Looking at other posts by user, they may be in Scotland. Anyone know is Scotts law varies from English in respect of employment rights?

OldLadyKnowsNothing · 25/05/2011 16:00

I'm fairly sure employment law is the same north and south of the border. (Scot)

Earlybird · 25/05/2011 16:03

How many times would you estimate she left you in the lurch?

I'd be steaming mad too, btw.

shesparkles · 25/05/2011 16:06

Employment law is the same in Scotland as England-it's criminal law which tends to differ :)

Strix · 25/05/2011 18:22

I'm confused. I thought pay in lieu was given when the employee was being let go due to no fault of his/her own. OP says she fired this employee.

Were there verbal/written warning leading up to this? Was she let go on the spot or given notice? What is in your contract in terms of dismissal?

And, I would think that repeated failure to turn up for work is gross misconduct... but that's just my opinion and not an educated interpretation of any law as I am not a lawyer.

Northernlurker · 25/05/2011 18:33

OP - you ask what is morally right. Imo what is morally right is an employer/employee relationship in which problems are addressed and recorded as they arise. Warning are issued if necessary. What is NOT morally right is for the employer to secretly seethe about behaviour, not act until one breaking point with any prior warning they move to instant dismissal without pay. Your nanny did yesterday exactly what she has done for months and you have never considered that an absolute sacking offence before. I know you'd had a chat - but did you say she was on her last chance? I think you're on dodgy ground and it woul be a good idea to agree with her that you will pay her in lieu of notice. You also need to think about references for her.

TheCowardlyLion · 25/05/2011 19:26

Yes, I think NorthernLurker is right. If you have followed general employment law throughout - verbal and then written warnings - but the problem has still continued, then you are of course well within your rights to ask your nanny to work her notice.

But now, I think, unless you are firing her on the grounds of gross misconduct (and I'm not saying that that can't be the case - there is no one definition of what constitutes gross misconduct), you are required either to give her notice or give her pay in lieu.

I am not a lawyer, but have found this on a legal site which I think explains what I am trying to say:

Pay in lieu of notice
Unless you have been fired for gross misconduct, if you are dismissed by your employer and you are not given the notice you are entitled to, your employer should pay you in lieu (instead of) of notice (this is also known as severance pay). The amount of severance pay you get may be stated in your employment contract, otherwise it will depend on what your normal pay is and the length of notice you are entitled to (i.e. if you were entitled to four week?s notice but were only given one, you are entitled to the three weeks? difference in severance pay). If it is not given to you automatically, should ask for payment in lieu of notice from your employer in writing.

Failure to give proper notice
If either you or your employer doesn't give the correct notice, this constitutes a breach of contract. This can happen, for example, if contractually notice should have been given in writing and it was only given verbally; or no notice or not enough notice was given.

If you lose out financially because your employer hasn?t given you enough notice, you can pursue a claim for damages through the civil courts or the employment tribunal system.

Earlybird · 25/05/2011 19:51

All of you may be technically and legally correct that the OP needs to pay the nanny, but this sort of thing drives me mad.

Clearly, the OP has been inconvenienced multiple times by an unreliable nanny (and her unreliable car). i think the nanny is fortunate to have had such an understanding employer, in spite of repeatedly failing to turn up for work. She does not have a long track record in this job that would perhaps mean she 'deserves' a bit more understanding. It is a shame that she should be protected and rewarded for unprofessional behaviour.

Quite honestly, I am astounded at the posters who are giving the OP a hard time! Why is no one attacking the nanny's dodgy (and repeated) excuses?

TheCowardlyLion · 25/05/2011 21:07

Who is giving the OP a hard time?

All everyone seems to be doing is pointing out the legal concerns. How does it help the OP to pretend that these don't exist? The last thing she wants, presumably, is to find herself facing a tribunal. The nanny's behaviour is irrelevant in terms of what the OP is asking in her thread title unless she chooses to fire her for gross misconduct.

StillSquiffy · 26/05/2011 08:22

? No-one is giving the OP a hard time. She asked what she needs to do in terms of severance pay and she's been given advice.

OP - whilst there is no formal definition of gross misconduct you are able to define your own interpretation to some extent in your contract. Therefore if your contract states that examples of gross misconduct include...."repeated failure to address issues when they are raised" or 'severe timekeeping issues" or similar then you are OK not to compensate. If you don't have this in your contract then a lawyer would probably advice that she is being dismissed for 'capability' reasons (by not being available) and not for gross misconduct (which requires an action that most reasonable people would think warrants being marched off premises - that type of stuff).

As such you will need to pay whatever notice period is in your terms (failing that it is 1 week for first year of employment).

If you have reason to believe she is lying about this in any way (see the recent thread on festivals for example) then you could argue that this would gross misconduct for the lying bit (but not for the crappy car bit)

You will need to pay for accrued holiday regardless.

Flip