Nanny and holidays

[PenguindreamsofDraco]

Our nanny started on 9 May and is, in virtually every respect, wonderful, but am so this morning and I need advice on how to deal with this!

She works Mon-Thurs and so has 22 days of paid holiday a year. The contract says we pick half and she picks half. So far this year she has picked 4 days and we have picked 3. We have a couple of things booked for later in the year, plus there's the Aug BH, so by the beginning of Dec we will have picked all 11 of our days.

She arrived this morning and announced that she has booked her ticket to fly home for a holiday between 12 Dec and 5 Jan. She didn't discuss this with me previously. That would be 16 days.

So, that would have her taking off 31 days in an 8 month period, which is 40% or so above the whole year's entitlement.

Obviously if she's booked it we won't say no, which is no doubt why she did it this way, but I am so annoyed! I have already told her we won't pay her for all of the time off because it'll take her over her annual max, and she seemed a little put out.

1. Is it possible to give her holiday up front from 2012/13 i.e. if we pay her for the time off in Dec/Jan she then gets 9 days less holiday from May 2012-2013?

1. What happens from Jan-May? She presumably can't expect any more time off (paid or otherwise)? But over Easter, for example, I won't be working and so would normally tell her not to come in. But if I've made my 11 picks for 2011, is she entitled to insist on working so as not to lose pay?

Please help - she is lovely and my son seems happy and settled with her. I don't want to cause too much friction whilst she's still in her 3 month trial period in case she ups and leaves, but this causes real problems for us with work and such and I am really annoyed she's done it this way.

9th May 2011 to 8th May 2012
Assuming you are in England or Wales, then bank/public holidays are:
30 May, 29 Aug, 26 Dec, 27 Dec, 2 Jan 2012 , 6 Apr, 9 Apr, 7 May
Of those only 6th April is a Friday, so I make that 7 bank/public holidays during the leave year.

The contract states that you each choose 8 days, then the bank holidays are extra. Thus 8+8+7 = 23 days, which is above minimum entitlement.
Does the contract specify it being 6 bank holidays?

Not sure it's relevant but I do feel you need to be fully aware of how many days leave the contract is giving. In 2012/13 year period there will be an extra day (June 5 2012) to take into account - so if the contract is worded such that you each get to choose 8 days and then the bank holidays are automatically selected, then 9 May 2012-8 May 2013 there will be another day of holiday entitlement, so 24 days (8 her choice +8 your choice +8 bank/public).

Bank/Public Holidays 2011-2015 England/Wales

12 Dec to 5 Jan
12,13,14,15,19,20,21,22
26,27 Dec Bank Holidays
28,29
2 Jan Bank Holiday
3,4,5

Is that right... she wants all the days off including 12 Dec and 5th Jan?
I make that 13 days of her choice, 3 days of Bank holidays.

You have made your picks for 2011. How about in Jan 2012?

Are any of your picks also dates the she is expecting to have off?

I would suggest producing a spreadsheet or something like that which shows each date which has been currently taken off, each bank/public holiday currently taken off, each date which you have decided to have off, and each date that she is wanting off. Show everything for 9 May 2011-8 May 2012.

Then you can go through the dates which she wants off and mark them as being paid (as part of annual holiday) or unpaid (authorised absence).

She may not be happy about not being paid on some days but unless you are going to be very nice and pay them on this occasion, then there isn't any choice in the matter as far as I can see. She wants the days off, you are being nice and letting her have them off but she does not have holiday remaining to take so they are unpaid.

If you are willing then perhaps she could do some of that unpaid time at a different date, so being paid in Dec/Jan but not paid when working the extra hours - such as in an evening for example, or maybe on a Friday if you need to do some work at home or in chambers/court.

You want to be a nice employer so you want to come to an agreement which you are all happy about.

That is extremely helpful Nick, many thanks. I think a spreadsheet is the way forwards - her English is not as good as I think she thinks it is on occasion.

Couple of things to add:

Minimum holiday entitlement is 5.6 weeks ie 22.4 days so if the contract says 8 + 8 + 6 = 22 it is not lawful, although in most years there are in fact 7 Bank/Public Holidays that do not fall on a Friday (the next scheduled Public Holiday on a Friday apart from Good Friday is 26 December 2014, and the following year both 25 December 2015 and 1 January 2016 are Fridays).

Dropping on you that she has booked flights to be away for a month at Christmas is not acceptable, even if she had the entitlement. Unless the nannyjob contract is unusually badly worded, all holiday requests are likely to be subject to the employer's approval. Point out that in future she must not make commitments without discussing it with you first.

Given that you want to keep her and so don't want to make too big an issue of this, I agree that unpaid leave is the way to go. As to how much to make unpaid, I agree with the spreadsheet (or a simple calendar) - make sure you nominate any days you want to (up to your 8) and don't forget the Bank Holiday on 7 May 2012 which presumably falls into her first leave year (good job she didn't start 2 days earlier otherwise it would get messy)?

Finally, in view of your profession, you are presumably aware of the need for employers to retain evidence of a statutory excuse in relation to a worker's entitlement to work in the UK?

Thanks Mranchovy. As far as I remember, the wording was 22.4 days, with us each selecting 8 and the remainder BHs.

I have seen the original and kept a copy of the relevant page in her passport showing she has indefinite leave to remain, which gives a right to work (and in fact she is applying for citizenship), but thank you for the reminder .

You'll be OK until 2014/5 then

I would be really hacked off about this. Finding cover for that amount if time would be very difficult for me and I think for a lot of other parents. Given you've only employed her for a few months are you sure you want to keep her? She is in breach of contract and has less than a year's service, you could just get rid of her. It shows she has either not read her contract or chosen to ignore it and shown a cavalier attitude towards your rules and requirements.

If you really think she is worth keeping then I would make it very clear that I would not expect it to happen again, would give her a formal warning about her breach of contract to ensure she understands how serious you are. I would make her take if from next year's allowance (I have worked for companies who allow you to dip into the following year's leave a month before the end of the year) but I would rewrite her contract to reflect it. I'd also explain what happens if she leaves before the leave she has taken has been accrued (iyswim), i.e. you can take it from any final salary (effectively meaning she works unpaid).

I would be livid especially since she has seemed to have engineered you into a position where you can't say no.

Windy

Update...

The contract provides for 22.4 days but accruing at 0.46 weeks per month, with the holiday year being the calendar year and holidays needing to be taken by 31 Dec. It provides that 2 weeks must be at a time of my choosing. No more than 2 weeks at a time, and written authorisation by me before she booked anything ( again).

She has had 7 days so far, 4 days of her choosing, 2 by me and 1 BH.

Accrued holiday pay to the end of Dec is 14.26 days, or say 15.

So, I proposed that the 1st 8 working days of her holiday be paid. The middle 4 days would be authorised and unpaid absence, and the 1st 4 days of Jan would be paid holiday for the 2012 calendar year.

I said that any other time off in 2011 would therefore not be paid, whether I choose it or she does. In fact I won't need her for a couple of days in a couple of weeks but I probably will pay that since it'll be so last minute.

She took the point that she should have discussed it with me and promised to do so in the future. She said once this trip is over she won't be taking further holiday in 2012 except maybe a week or so.

I don't think she understood that she doesn't have the right to take limitless amounts of time off, paid or unpaid. I think she basically thought she could lump together all of her holiday accrued or future to get the amount of time she needed, and it was her call rather than mine.

I think we are sorted for this one (I will send her a letter setting out what was agreed and detailing the problems) but have to say it makes me a little .

Anyway, thanks everyone for the input. Whoever commented that I was obviously a first time employer is absolutely right and I really didn't know if this was par for the course or not.

Glad its all sorted! Good idea to put in writing as its important that everything is formally done.

You might like to check the maths in that contract, because it looks to me like everything has been calculated on the basis of there being 4 weeks in a month. Correct calculations are:

22.4 days can accrue at 22.4 / 365 x 7 = (rounding up) 0.43 days a week: 0.46 days a week gives 24 days a year!

By starting on 9 May she will have been employed for 8 months less 1 week in 2011, but this is actually 34 weeks not 31. 34 x 0.43 = 14.62.

I said that any other time off in 2011 would therefore not be paid, whether I choose it or she does.
You can't do that. You can only not pay her if the contract is frustrated (for instance by her being sick), she breaches the contract (for instance by being absent without consent), or the contract is modified by mutual agreement (for instance by consenting to unpaid leave). Not providing work and not paying her would put you in breach of the contract.

If you are going to want her not to work any other days between now and Christmas you need to make that clear now, and make her take more of her leave in December unpaid.

Oh God, really? I do understand about frustrations etc (honestly, I am a lawyer!) but I thought we could legitimately vary the contract so that I waive my right to choose 2 weeks' worth and effectively she gets her whole holiday entitlement at a time of her choosing.

It's only going to apply to 4 days in Nov (of my choosing), so I thought it was easier for her to know up front how much of her long holiday would be unpaid.

But if she asks to have more time off (I don't think she will, but if she does), she'll obviously be over her holiday limit, so why on earth would I have to pay her for that in the event that I agree that she can have it?

If she asks for more time off this year (and you consent), then it can be unpaid of course. But if you tell her to take more time off then you will not have varied the contract to allow for that to be unpaid.

I've thought about this a bit more, and although I'll deal with the contractual/statutory position there is a big caveat at the end, so here goes...

If you want the 4 days in November, I think you need to deal with it now. Unfortunately it looks as though your contract is not very well drafted to deal with holiday in the first (holiday) year of employment because it appears to allow both the employer and the employee to choose up to 2 weeks of holiday regardless of whether that holiday is actually accrued! You might like to point this out to nannytax. Anyway, lets deal with it in stages:

1. How much holiday will be accrued for the period?

If it is 34 weeks at 0.46 days a week it is 15.64 days. As she started on 9th May she will have been employed for 237 days in 2011 so the statutory minimum would be 22.4 days x 237 / 365 = 14.55 days, which could be rounded up to 15.

1. How much holiday will be taken in the period (excluding the requested holiday)?

She has already taken 4 days of her choosing and 1 of yours. There are 4 bank holidays (Whitsun, August, Christmas Day and Boxing Day) and you want to choose another 4 days in November (which will make 5 days of your choosing: in 2011 a fair apportionment of the 2 weeks the contract allows for you to choose would be 8 days x 237 / 365 = 5.19 days so you are OK there). That makes 4 + 1 + 4 + 4 = 13 days.

1. So how much holiday is left to be taken?

Contractually it looks like 16 - 13 = 3 days, the statutory minumum is 15 - 13 = 2 days, however the contract also says she is allowed to choose 2 weeks (8 days) and as she has only chosen 4 days so far so she is allowed to choose holiday which she isn't actually allowed to take! I think the most reasonable resolution of this is that she can choose all of the remaining 3 days.

1. How much more holiday is she requesting in 2011?

12, 13, 14, 15, 19, 20, 21, 22, 27, 28 December i.e. 10 days.

So she wants 10 days, but only has 2 or 3 days paid holiday left to take - 7 or 8 days should therefore be unpaid. Note that this is different from your calculation because I have 'swapped' the 4 days in November and you forgot about the August Bank Holiday.

BUT

The fact that leave accrues in calendar years changes the whole picture. Look at it this way: if she took her holiday 2 weeks later and wanted the same amount of time off only 2 days of this (and 2 bank holidays) would fall in 2011. 11 days (and 1 bank holiday) would fall in 2012. Now she is entitled to choose 8 days in 2012, so it would be reasonable to make her take 3 of those unpaid. Perhaps it is therefore reasonable to allow her to bring forward her 8 days of own choice holiday from 2012, although you are not obliged to do so of course, and I am sure that you are less disposed to do so given that she has presented you with a fait accompli and this causes you a problem with your commitments in December.

If it was me, the December work commitments would be the biggest problem and whatever we do about paid/unpaid holiday is not going to change that. I would also be annoyed and embarrased that my contract doesn't seem to deal with the first partial holiday year correctly (0.46 days per week is too much and 2 weeks plus 2 weeks plus bank holidays is not right) as I am a bit anal about contract drafting (can you tell ?). On balance therefore there is not a lot to be gained by taking a strong position on this. I would therefore sit her down, explain all the issues including the holiday I want to nominate in November and say that I am willing to agree to grant her all the Christmas holiday paid, and that unless my plans change she will get a week off paid in November too, but this means bringing 8 days holiday forward and so the only paid holiday in 2012 will be the 8 days of my choosing and the 8 bank holidays she will get (including the extra one for the Queen's Diamond Jubilee).

Oops, I meant grant her 13 days of paid holiday over Christmas (2 Bank Holidays plus the remaining 2 days of her holiday for 2011 and 5 days of her choice brought forward from 2012, and 1 Bank Holiday and 3 days of her choice in 2012), meaning that she must take 3 days (in 2011) unpaid.

Just to say that you are not being unreasonable and also that a good nanny is about more than just being good with your child. It has to work for you too (and I know this from experience). You have to have a good relationship with your nanny and something like this would set alarm bells ringing for me.

My first nanny had a very cavalier attitude to time off and because I wanted to be accommodating she ended up having over 5 weeks off in 6 months (holiday and sickness) and was still asking for days off over and above annual leave for the latter part of the year.