Nanny resigning without working her notice

[MelRubies]

The nanny we had for the last 10 months has resigned out of the blue and will not work her one month notice. What are our rights as parents?

We had a 1 year contract with her and are very upset by the way she treated us as a family. The way the contract was worked out by the agency was that she was working 35 hours during school term and 50 hours during school holidays. She was paid £400 per week to cover the difference between term and holiday hours. By quitting before the summer holidays she in effect owes us money.
The agency won't get involved and the nanny won't speak to us any more.
She is from New Zealand and in the last 10 months had taken 9 sick days, which she knew we were not happy with as she would let us know about her not coming in for work half an hour before she was meant to start.
Is there anything we can do to get our money back from her? I know that if we'd sacked her without giving her notice we'd be expected to pay her at least 2 weeks wages. Doesn't it work the other way round?
If anyone has any advise, please let me know. We really feel used and gutted.
Thanks

Do you have some kind of insurance to help get the money back? I'm a cm so different but didn't know if employers have some kind of cover?

I don't really think there's anything much you can do.

The way the pay was worked out, ie, effectively paying her in advance was a bit naive, really.

We have had nannies and other staff leave without notice, in one case a secretary left after she had been paid in advance for holidays she had booked before starting with us, as a sign of good faith, on our behalf. Well, you want to be a good employer, don't you? So, we were out of pocket. (And felt gutted and used!)

I suppose there's the small claims tribunal. It might be worth a try, if she intending on staying in the UK, she won't want a CCJ. But, equally, she might defend the case, and how far do you want to take it?

The extra hours for the holiday period you can't claim back. All you would be entitled to claim would be the financial effect of her not serving notice, which would be the difference between what you would have paid her and what you will need to pay to have a nanny cover that month - ie if you get a nanny costing £500 a week you are entitled to claim 100*52/12. It is only the direct financial effect that you can claim for.

I suggest you tell her that an emergency nanny is costing £X (once you find out how much) and therefore you will be putting in a claim for breach of contract in small claims court seeking remedy of Y (difference between X and nanny salary), and that she has 24 hours to either settle the amount in full (and so avoid additional legal costs) or return to work. You should also point out that a judgement against her will have to be disclosed to future employers in the UK and will create issues should she seek to be Ofsted registered in future. I'd point out as well that you are disappointed that she is behaving so unprofessionally but are sure she will be able to turn this around and serve her notice in a more professional manner once she has sought legal advice to confirm your rights to remedy for breach of contract (remedy is not a typo by the way, tis one of the legal terms for damages).

Small claims fairly easy to get going - you cna download the forms.

Recruitment agencies are not competent to advise on employment contracts, and I am not surprised they won't get involved now, but they should never have got involved in the first place either.

What is the notice period in the contract, or does the contract only say that it is for a fixed term until x?

Have you worked out how much has been overpaid - if she has holiday in the summer it might not be as much as you think, firstly because there are fewer weeks she will be due to work extra hours and secondly because she will have accrued 10/12 of her annual leave entitlement (min 5.6 weeks) and will have taken less than this.

Depending on how the contract is worded, you might be able to claim for any overpayment.

Given the situation, I think it is unlikely that forcing her to return to work would be the best outcome. Also note that there is no obligation to notify any future employer or Ofsted about any civil action (Ofsted only care about the education and welfare of children, not financial disputes) and unless you are awarded damages by a court and she doesn't pay up it will not affect her credit record so you may make those threats but if she takes legal advice they will tell her that you don't know what you are talking about and that may make her more likely to call your bluff.

I disagree with Stillsquiffy about what you can claim for. If the contract was for agreed hours on the basis that you paid a monthly even rate on the basis of annual hours divided by 12, then if she has been overpaid as a result of leaving before a holiday period then contractually she must return that extra money. It is the same as if you resign half way through your holiday year having taken all you annual leave: your employer docks your final pay for the days you have taken over your pro rate entitlement.

In addition of course you can claim the pay of getting someone else in to do the final month, so long as you mitigate your loss.

However in practical terms none of this is likely to help you, as for the sums involved (I imagine less than £5k?), it will take a lot of your time to pursue through the small claims court and if she has no assets then even if you succeed, you will not see any money from her.

It's bad luck. I hope you have better luck with her replacement.

Also, you cannot recover you legal costs in the small claims court, even if you win.

If the contract was clear on the wages then I don't see why you can't recover. The claim will be the difference in salary for notice but there may also be another for the overpayment.

Check the holiday as my after school nanny had taken too much and at the wrong times if year when she gave (and worked her notice). Query whether small claims is the right forum for this or employment tribunal. Call acas and ask their advice.

An unpaid judgment will affect her credit record meaning she will have trouble with loans, credit cards etc. Also you may be able to attach her earnings from her account as a way of enforcement.

It's a horrible situation and you have my full sympathies.

Thanks everyone for all your comments. It's been really helpful.
We sure have learnt our lesson. We should have known better to be honest, she was quite business like about looking after the children. We just hope she won't do this to another family but we're not sure we can face the long process and the stress of taking her to court. We're also disappointed with the nanny agency involved as they washed their hands of the situation despite the huge admin fee they charged us at the start of her employment.