Gross Misconduct

[mranchovy]

Without going into the background (e.g. here), there are various draft Gross Misconduct clauses available on the internet, but nothing tailored towards nanny/au pair contracts.

So here are my bullet points:

• Negligence: any negligent act or omission with the potential to endanger the children
• Breach of confidence: disclosure to or discussion with any third party of any information relating to the children or the employer or the employer's family unless required for the perfomance of the duties or specifically authorised by the employer. Pictures or details relating to the family must not be posted on any blog, forum, social networing or any other public or private web site whether anonymously or otherwise.
• Drunk driving: driving a car belonging to the employer at any time while unfit through drink or drugs
• Alcohol/drug abuse: intoxication or incapcity through use of alcohol or drugs while on duty
• Illegal drugs: posession or use of illegal drugs [while on duty or in the home/at any time]
• Violence/abuse: violent or abusive behaviour to any person
• Theft
• Willful or reckless damage to property
• Computer/internet/technology misuse: use of any equipment or service provided by the family (e.g. WiFi, broadband, mobile phone) to access any pornographic material or for any illegal act
• Any other act or omission which may reasonably be considered by the employer as gross misconduct
• [Insubordination: failure to comply with any reasonable instruction given by the employer - I personally don't like this one as it sounds officious and antiquated and if any non-compliance were serious enough not to be dealt with as an ordinary disciplinary matter it would be covered under the previous catch-all]

No I have never had a problem with confidentiality - perhaps because I use a breach of confidence clause [smug]?

If you don't have this in, and you have a nanny that has been with you for 18 months and you find out that she has been plastering your kids lives all over the internet, you could have a big problem. Sack her straight away, even with PILON, and you could find yourself with the time, trouble and expense of a tribunal (or a compromise agreement) on your hands. Give her a first and final written warning and you could be stuck with a nanny you can't trust.

I take your pt abt the internet. However, I personally think it is a bit harsh on the au pairs whose only point putting up a picture of their host family on FB is to show everyone how lovely they are or some trip they have taken with us, which I do not personally mind. I'm sure they would take down anything I was uncomfortable with. Obviously if it were nude photos that would be something else but I'm fairly certain that sort of judgement error could arguably fall under another one of the categories of gm we have - or even that you list above

• Any other act or omission which may reasonably be considered by the employer as gross misconduct

I was thinking more in terms of an ap telling me her host father didn't wear knickers. Sackable?!

I was thinking more in terms of an ap telling me her host father didn't wear knickers.

The kind of thing that concerns me is more subtle. For example a nanny friend of my nanny has a charge in DS's class who is bullying him. My nanny talks to her friend about how DS comes home from school every day crying, nanny friend talks to her charge who gets some unexpected feedback on the success of his actions.

If you don't have anything about confidentiality in your contract it is very likely that a court would not see it as reasonable to dismiss summarily for a breach of confidence with or without a 'catch-all' clause.

We do have it with our nanny who has been with us for four years. Not with examples, mind.

We don't have it with the au pairs who are with us less than a year.

We can go round the houses here IMO - you certainly can't expect a nanny NEVER to mention their family and putting that clause in doesn't mean that you couldn't be considered unreasonable or paranoid in an employment tribunal.

Never put examples in a contract.

You are absolutely right, you do still have to be reasonable in excersising the contractual right to dismiss summarily for breach of confidence, however the contract does have to give you the right in the first place because (unlike for instance doing only the work of your employer during the hours you are employed) confidentiality is not an implied term in a contract of employment.

Anyway, I am not forcing anyone to use my list - but everything is there (or not there) for a reason which may not be obvious, so if you ask I am going to tell you!

I like your list, don't get me wrong. It's very similar to what we have with our nanny. I have much higher standards for the nanny than our au pairs when it comes to expectations around professionalism, etc.

I guess my point with the au pairs is that ours do seem to come expecting to be part of the family, are young, and inexperienced/immature in many areas. They could easily do something inadvertently w/o appreciating the implications. I don't want to get myself into a situation where I have to enforce a contract that is...maybe a little too onerous for a teenarger who has only ever lived with her parents. Hence my question earlier on in the thread.

I'm not saying we couldn't be exposing ourselves. I'm just reflecting!

I see MrA. So if you found out that your nanny had been talking about your childrens development, you wouldnt necessarialy dismiss her straight away, but would discuss it and draw her attention to the clause? I would find it a bit initmidating that as a nanny i would have to keep completely quiet about my job, a bit like working for top secret police investigations!

necessarily*

a bit like working for top secret police investigations!

No, just like working as a nurse, teacher, social worker or for that matter bank clerk, accountant, lawyer....

If nannies want to be treated as professional child care workers, they must expect to behave professionally. I accept that the situation for an au pair is slightly different, but I am still going to sack her if she does something really stupid.

You don't have to dismiss someone without notice just because the contract says you might.

My point earlier was that if a clause of a contract is so badly drafted that it is bound to be breached unintentionally, it is very difficult to enforce it when there is a breach that actually matters.

Ok, thank you. Would you say it is the EMPLOYERS responsibility to ensure these clauses go into the contract? Oftentimes families are more than happy to skim over a generic contract and sign it. My last contract was drafted by my lawyer boss and it wasnt nearly as comprehensive as your example above.

I personally DO behave professionally regardless of what it says in my contract, I wont abuse the fact that because my contract doesnt expressly say I cant discuss my charges doesnt mean I then go and share every piece of information. Having said that, the relationships I have with my current employers are professional and friendly - I do talk about them with endearment and have even invited one family to my wedding. However, I may not have the same kind of relationship with any future family.

It is the employer that is going to want to dismiss for gross misconduct so yes, they are going to have to rely on what goes in there.

There are two approaches to drafting a gross misconduct clause. One is to leave it very general, with a catch-all. This works fine for things like theft, violence towards children etc. which almost always warrant summary dismissal. But for the others - particularly computer misuse and breach of confidence - an employee would certainly have a argument that even in the worst of cases, their actions were not so unreasonable as to warrant summary dismissal.

But I do think it is important that contracts of employment are 'user friendly', and I hate long lists of definitions so here is where I am going:

Gross misconduct
If the employee does anything (or fails to take any necessary action) which may reasonably be considered by the employer as gross misconduct, the employer may terminate the employment without notice. Behaviour which may be considered gross misconduct includes (but is not limited to):

• any negligent act or omission with the potential to endanger a child;
• breach of any policy, term or condition relating to
  • drugs and alcohol,
  • use of computers, the internet and communications devices, or
  • confidentiality;
• driving a car belonging to the employer while unfit through drink or drugs;
• violent or abusive behaviour to any person; willful or reckless damage to property; theft.

... and some separate clauses for

Drugs and alcohol

• The employee shall not drink alcohol or use recreational drugs or tobacco while on duty.
• The employee shall not be intoxicated through use of alcohol or drugs while on duty.
• The employee shall not posess or use illegal drugs while on duty or in the employer's home or car.

Use of computers, the internet and communications devices

• The employee shall not use any equipment or service provided by the family (e.g. WiFi, broadband, mobile phone) to access any pornographic material or for any illegal act at any time.

Confidentiality

• The employee shall not disclose to or discuss with any third party any information relating to the children or the employer or the employer's family unless required for the perfomance of the duties or specifically authorised by the employer.
• Pictures or details relating to the family must not be posted on any blog, forum, social networing or any other public or private web site whether anonymously or otherwise unless specifically authorised by the employer.

Home security and visitors

• When leaving the home unoccupied the employee shall ensure that it is locked and secured as shown by the employer.
• The employee shall not invite anyone to the home unless it has been agreed in advance by the employer that that person may visit at that time.
• No other person shall be allowed into the home except for the emergency services or where required by law (for example meter readers). Except in emergency, a satisfactory check of identity must always be made by the employee.