Notice to CM while she is on leave

[Ahardyfool]

Hi all. Hoping for some guidance here...

We are approx 4 weeks into our CM's maternity leave now and alternative provision has been made for our children until the planned return to work of CM in September. However, we now need to relocate due to work in September so the childminder will not be able to pick up from new schools, thus her services are no longer required. Childminder is fantastic and we are very sad about this and she will be hard to replace.

Having notified her, we are now advised that we must give a month's notice. That's fine and as expected. However, we are being asked to pay for those 4 weeks even though they fall at a time when we aren't actually paying her as we are using alternative provision while she is on leave.

Can I just check that this is usual practise as it seems odd to me? We are well used to paying for our days off and child sickness, etc. But this seems above and beyond reasonable expectation.

Happy to be advised otherwise but really need to ask before I put my fit in it and cause upset.

Most contracts say notice period cannot include time on leave, so technically it might be correct to pay. However ... You could argue that she's not available to work her notice, if she can't do your school run. In this situation I wouldn't ask for the money. Read your contract, as it might well show that the money is payable.

You could agree and ask her to work her notice and see what happens ........

Completely depends on what's written in your contract, however I would suggest that you will have to pay.

As she is off on maternity leave, and due to return the second you go, I can see why she would feel the right to ask for paid notice. HOWEVER, Unless it's written in contract you don't have to do anything.

Did you pay a deposit? Was this refundable? If so, could that be used as last months payment?

You need to ask them to show you where in the contract it says that.

There is an employment law that basically says that if you make someone redundant, you have to pay them full pay for the notice period regardless of whether they are off sick, on holiday, whatever. However I'm not sure how it would work with a CM as they are not employed by you....perhaps she put a similar clause in her contract.
Sorry that's not much use!

If the contract says notice must not be given while on leave then yes you will have to pay. Not her fault your circumstances are changing.

I'm trying to find the contract! I am not the best paperwork person so it will be buried somewhere.

Not sure why 'fault' has come up. Nobody is saying it is anyone's fault!

Clearly, there is mixed opinion and the 'not being able to serve notice during leave' sounds applicable but I shall need to check the contract to be certain.

Thanks for responses.

As others have said it is pretty common for childminding contracts to state that notice can't be given during leave. Mine definitely says that. Also as it is now so close to September I can see why your childminder would ask for notice pay. She has been holding the space open for your children ready for their return and quite likely turning away other enquiries in the meantime. She would probably have been less likely to ask for it if you had told her about your change of plans a little earlier on in the summer.

Yes. We've remained in touch since her leave began and had coffee a couple of weeks ago when I advised her it was looking unlikely that we would stay at the school. I let her know as soon as we were certain. If we are not contractually obliged I will lonely offer 2 weeks pay but it's going to be a huge bill to foot that month if we have to pay double.

If it is an NCMA/Pacey contract it may well say something along the lines of "Notice of termination of the Contract by either party must be given in writing. Such notice of termination must not be given during a period of the childminders or parent time off", but not all contracts say this.

I feel for you OP in that you didn't ask for this, and it wasn't planned, and you already mentioned how much you appreciate your CM. I think if it isn't written in your contract, then your CM has learnt a valuable lesson, and I'm sure she will be making sure it is for future parents.

It's not uncommon for contracts to have these clauses, mine states that if notice is given whilst I am off on unpaid leave, either due to maternity, or long term sickness, and clients leaving date is before or shortly after I'm due to return to work, then the last 4weeks will be payable. from a CM point of view, this is to protect ourselves against loss of earnings, when we are unlikely to be in the position to fill spaces. Just imagine trying to advertise and sign up new parents when you have a newborn!

I know you may have a few weeks cross over where you are paying double for childcare, however during the time your CM has been on maternity leave, she may well have only been getting £90p/w. So to face returning to work, and loosing clients immediately is a massive kick in the teeth. Again, I know this was unintentional, but it's hardly fair for CM.

But like I said in my PP, if she didn't tell you this, and if it isn't in contract, you don't legally have to pay her anything...2 weeks would be a reasonable gesture.

Get them to show you where it says that in the contract. Once you have decided to leave of course.

I'm with you OP, it sounds odd. The CM is not an employee, you pay for a service and now she cant provide it. Does the OP have to pay mat pay like an employer and then claim it back

My CM is defo past child bearing age otherwise I'd be checking my contract.