Holidays

[Nanny2688]

Hi I just wondered if anybody could help with regards to my holidays..

I have worked for a family for nearly two years now and they have always been great with holidays. In my contract it says I get 28 days but have always had alot more as they have taken more time off. They have picked 90% of the holidays which I have been fine with as I was getting so many more extra days.

The problem now is the job has turned into a nanny share on 3 of the 5 days I work for them and the new family are very keen to make sure I get all of my holidays and no more. They have said I get to pick 50% of the holidays and both families should get to pick a week each which is fine. However both families have extra holidays booked in when I am available to work. For example they have both picked a week each for next year but have also said I will have 9 days off at christmas and an extra week at another time in the year.
Is it unfair of me to still be expected to be paid as I am available to work but they will be away? I couldn't afford to miss a weeks pay.

They have also informed me I won't be needed a day in two days time as they are off, again should this be taken from my holiday entitlement even though iv only been given two days notice?

I hope this makes sense! Any help would be appreciated!
Tia
Holly

I've always had 2 weeks my choice and 2 weeks theirs and any extra time they take off I will be paid and time off

Friend is 'owing' days at the moment as her family have gone over their two weeks - I've said this is not fair but she has nothing in contract more fool her :(

Shares do make it difficult but as long as you get 2 weeks your choice and both take a week their choice and you have that off and other family has to sort out chikdcare then if family a go away but b doesn't you will need to work for b but a will still have to pay

Hope Ive explained that ok

I think they have to pay you if they take extra holidays. You have a contract that stipulate the hours, days and holiday entitlement. They can't just cancel some days and not pay you.

They are allowed to chose one week each. If they want more they still pay.

You are entitled to choose two weeks. You want more, you are not paid.

You are paid a salary which is paid either weekly or monthly and calculated based on a daily rate. Your contract is based on your being available for work on the days specified in your contact with the exception of holidays as specified in the contract. If you are not available for work outside the holiday and sickness terms in your contract the employer can reasonably deduct pay from your wages however, if the employer does not require you to work, they are still obliged to pay you in agreement with the terms of the contract. If you were to be paid only for the days they required you, and were able to change this as short notice, the terms of the contract would be different, as would your daily rate.

I hope that makes sense!

Have you picked your two weeks? Do so as soon as you can to avoid any confusion. 2 of yours plus 2 of theirs gives 20 days.

Do you need to have a few days of the remaining 8 in case of appointments etc, you should discuss this if you do, or you risk those being taken by the family and leaving you having to take unpaid leave.

I think the last 8 days are the bank holidays, no?

They should still be paying you for the days that you would normally work but, because of their holiday plans, they have told you you are not needed.

BUT you may need to check what your contract says about this

If the families take more than their share of two weeks, you should have option in contract to either do nursey jobs around the house or to have additional paid leave. This is what I have in my contracts. I remove any text that says I can take it as unpaid leave, same goes for hospital stays or odd days parents take off. I explain to parents that I still need to be paid for being available. You can use the strategy of saying to families 'how would you feel if your boss said I don't need you this week so I won't pay you'
One day's pay is quite substantial so imagine a whole week.

On another note, this new family is not endearing themselves to you are they? Be strong, get you contract out and read holiday section carefully. If you haven't made changes I do it should say any days off unpaid BY AGREEMENTS or similar. If you don't agree they have to pay. You can do nursey jobs round house. ACAS can advise if necessary.

Wishing you well in sorting it out.

Message me if you want to talk.

Like the others have mentioned, you should check your contract to see what it says about days when you're not able to work due to the families' situations - but unless it states that you will be paid for these days in your contract they are actually not under any obligation to pay you for holiday over and above the 28 days you're legally entitled to.

It's the same as if you worked in an office that was closed over the Christmas period - you wouldn't be able to work those days, so you could choose to take them either as holiday days or unpaid.

I'd be happy to chat more about this either via message or you can use the livechat on our website here - www.nannytax.co.uk/all-inclusive-service/nanny-payroll - I'm Rosie and I'll probably be logged on there most of this afternoon :)

I am really surprised by your answer.

If you work in an office, the contract is different. It doesn't state that you get to choose two weeks and the employer chooses two. And even if you really wants to compare, the Christmas week is equivalent to the week the employer choose.

I am really surprised that a nanny taxes agency would say that. Sure enough, to keep your parallel with working in an office, your boss can"t decide once a week that you have to go home in the afternoon and that you won't be paid. Or just decide that one week a month, you won't work nor be paid.

If you work in an office and it's a quiet day, you are not sent back home --you just stay at work and play candy crush.

If an employer sign a contract to have nanny pay 52 weeks a year, including 5.6 weeks of paid holidays, he has to honor his part of the contract.

Yup! Agree with OhReally, company shut down is usually part of the contract and agreed use of holidays. In certain factory situations, the factory shuts for set periods during which the employees are paid for their holiday, should the factory decide to close at other times, they still have to pay their workers in line unless their contract states otherwise, if the contract does not state otherwise, the employer must pay.

Can't see it mentioned already, so I will - there is no statutory entitlement to have Bank Holidays off work. It is something that is agreed in the contract. If they don't need you to work on a Bank Holiday, does that come out of their choice, your choice, or something else?

Exactly, it's nothing like a company shut down. The nanny tax answer can't be right can it, or contracts wouldn't be worth the paper they were written on? I hope somebody from the company will come back and clarify...

nannytax1 wrote: "check your contract to see what it says about days when you're not able to work due to the families' situations"

Does anyone have the wording for such a clause? In particular have a look for anything about lay-off. Not sure I have ever seen it in a contract I have had, not sure I would agree to it, unless at full-pay.

nannytax1 wrote: "they are actually not under any obligation to pay you for holiday over and above the 28 days you're legally entitled to."

That I agree with, if the holiday is stated as being 28 days, then if the nanny chooses to take more holiday than that then they don't need to be paid for the extra taken.

nannytax1 wrote: "It's the same as if you worked in an office that was closed over the Christmas period - you wouldn't be able to work those days, so you could choose to take them either as holiday days or unpaid."

Yes, the employer is choosing to close, so staff need to take the time off as part of their annual leave. Where someone does not wish to do that, the alternative is unpaid leave if the contract permits that. The employer can dictate ALL leave taken by the employee, though in practice the employer will approve or decline leave requests.

In a nannying situation, the parents would be choosing that period of time as a time they do not need the nanny and thus the nanny would take it as annual leave. Therefore if there is an agreement that employer chooses half and nanny chooses half, then this period of time could come out of the employers choice. Should be discussed though, as most nannies would want time off over Christmas period, so may be fairer if that holiday time came out of both sides equally. Least that is how I see it.

ACAS: Holidays and Holiday Pay (pdf) - this may be a useful read.
Bottom of page 4 it says:

Employers may choose to:
<ul><li>shut down for certain periods during which all or some groups of workers 
</li></ul>
have to use their annual holiday entitlement
<ul><li>nominate particular dates as days of closure, when workers are expected to take annual leave (for example, over the Christmas and New Year period)  
</li></ul>

nannytax1 - please do come back and explain further.

If an employee had 28 days entitlement and has taken all those 28 days during the holiday year (as per approval from their employer), then their employer decides to not need them for a week... what happens? Is that then a Lay-Off? My understanding of a Lay-Off is that it still needs to be paid, unless there is a specific term in the contract permitting the employer to lay-off without pay. The contract may specify that lay-offs are at full pay, a percentage of normal pay, or at statutory guarantee amount.
Would nannies agree to a clause where they can be laid-off without pay? Is that normal, or would it be more usual for it to be at full-pay?

I have heard what nannytax said before, and I think this is one of those situations where what is legal and what is standard practice for a nanny employment relationship are at odds. For once nannies are getting a better deal, although I agree with nick that it's more likely to be a lay off with a statutory amount than totally unpaid.

Hi all - as a few people have mentioned the key thing to do is to check what is laid out in the contract regarding holiday entitlement, and there's a difference between what normally happens in a nanny contract and what's the legal minimums :)

Regarding Bank Holidays - they are included in the 28 days of holiday you are entitled to. They are the 8 additional days that come on top of the normal 4 weeks - so if (as is normally the case for nannies) you choose 2 weeks and the employer chooses 2 weeks, those 8 days stand separately.

As has been mentioned - company shut down is normally included as part of the employment contract, so in the same way anything about days where you are not able to work should also be included in your contract. If there is no laying-off clause in your contract, or no clause that relates to additional leave in certain situations, you are only entitled to the legal minimum - so those 5.6 weeks/28 days. If there are days that you are unable to work for any reason (whether that's because your employer is on holiday or you have a doctor's appointment, for example) and all the holiday has been used up, unfortunately you are not legally entitled to be paid.

Nick is also right that the employer has the legal right to dictate exactly when all holiday is taken - though most nanny employers wouldn't ever do this, they would be entitled to!

I should clarify that I'm just stating the facts as we understand them - not making any comment on how fair or otherwise they are :)

So from what you've just stated, if my employer has taken her 2 weeks holiday choice and then decides to send the children to the grandparents for 2 weeks in the summer holiday and tells me I'm not needed and then decides to book a last minute half term holiday for the week and tells me I'm not needed that she doesn't have to pay me! Even though I am available for work. Surely that can't be right!

nbee - I know it's unfair :( That's why you should always have something in the contract that covers these situations

Nannytax, if the employer write a contract where it is clearly stated that the employer will choose two weeks and the employee will chosse two weeks, I think that legally, it has to be that way no?

You mention the extra days the nanny would want to take (and I agree they will be unpaid) if the employer can choose all the holiday, but give 6 extra (unplanned) days of holiday a year to the nanny, they don't have to pay? If a employee sue they employer regarding that matter, are you 100% that the employer won't have to pay the extra days ? I really am skeptical about it (bnot saying you are wrong, but I have areally hard time believing it).

OhReally - The employer is liable to pay for the days that the nanny has worked and any days they have allocated as paid holiday - that must obviously include the statutory minimum of 5.6 weeks per year, but it could also include more if stated in the contract.

If it was in the contract that there would be 6 extra paid holiday days then the employer would be liable to pay for them. If those days were more impromptu and not mentioned in the contract then the employer would be liable to pay for them only if they had agreed with the nanny beforehand that they would pay for them - that could be a verbal agreement or a formal written agreement.

I'd always suggest making it clear both in the contract and the holiday records you keep if any additional paid holiday has been granted over and above the statutory minimum.

I hope that makes sense - let me know if not :)

Obviously, unplanned days won't be in the contract ;). I think we weren't talking about the same thing. . But we can agree that unless the contract clearly state differently, the employer can choose the holidays' dates.

If the contract state that there will be x many unpaid additional days, that is still legal.

If over 28 days taken by the employer (and by the employer only) then the employee should check the contract to see if something is written about that case. If not, talk to the employer to agree or not to have that unpaid day (the point we might not agree on is if the employee can "force" the employer to pay those extra days if he/she refuses to take it unpaid)

Oops, just read that again and I think we were!

But yes, your post sums it up pretty much perfectly :)

Shows the importance of reading the contract and negotiating any points in it which you feel are not suitable and clarifying any points which are unclear.

Legally a written statement does not have to be given to an employee until 2 months after starting work but I feel it is wise to have it before starting work, so everyone involved knows what is being agreed.

I've been trying to find a bit more info on this and from the couple of bits I've read so far is that if you have a number of hours per week stated in your contract then your employer has to offer at least this amount of hours per week. Only if you are on a zero hours contract would your employer be able to say we have no hours for you this week so you will not be paid.

Most nannies if they have a contract will have hours in it so does that mean if their employer goes away over their 2 weeks that the nanny will be paid and time off and not have to make it up

As I said my friend is 'making up' days. Her family have gone away for a 3rd week and ahe now says her nanny has to make the days up. She works 4 days a week one week and 5 the next (Friday) so she has to make up the days on her 5th unworked day every other week - meaning she is working 5 days every week at the moment with the every other Friday counting for 1 day of the day owed

This is so wrong :(

My employers pay me continually through the year .If they want extra holiday they still pay me.

I expect no one has challenged it legally.
But if you contract says you work Mon - Fri 9-5 then those hours are the ones your employer is contracted to pay.
The contact will also state holiday. If it says holiday taken over 5.6 weeks is not paid then that would be the case.
If it simply says holiday is 5.6 weeks then surely you must be paid.