AIBU:Should I pay my CM even though I gave her sufficient notice?

[Needadvice2018]

Hello,
I’ve changed my name just incase my CM sees.

Basically, my CM had my daughter through out term time since last September. I pay her a month in advance. I told her in July that I no longer needed her to look after my child as she would be going to nursery from September.
I assumed this would be sufficient notice as it’s 6 weeks plus. She’s now saying that as my child only does term time she needed 4 weeks notice during term time and I need to pay for September :/
My child is only contracted for term time but I assumed the 4 weeks notice wouldn’t need to be during term time. She’s now threatening to add late fees on top of what I owe her!
Should I pay her for September even though she knew 6 weeks ago she wouldn’t have my child?

Thank you for all those who got back to me by the way, it's been really helpful

"4 weeks contractual notice" and the bit saying "term time only" says to me contracted weeks are term-time only, therefore notice has to be term time only.
You signed the contract. You are liable for fees, and late charges if you didn't give 4 term time weeks notice. And she can take to to small claims for the fees.

At what point in July did you give notice?

@Frusso I told her mid July that my daughter definitely wouldn't be going back but my mum had already said before that she would probably be going to nursery in September so she's known for a while. She didn't message back due to her being on holiday.

I'm well aware that if the contract can be construed as her needing 4 weeks contractual notice that she can take me to small claims court hence why I'm asking for advice as to me the wording of the contract
is unclear I just don't want to be throwing money at her when my daughter is no longer under her care.

However, contractual notice is the amount of notice that the employer can set out in the terms and conditions of employment which can be longer than the statutory notice. For example the statutory notice an employee must give to an employer is one week, however, an employer can state within the terms of employment that an employee must give one month's notice.

Taken from this link:

www.acas.org.uk/index.aspx?articleid=4096

I don't see that she has a leg to stand on, her "contractual notice" is 4 weeks, you gave that in July. Tell her to do one.

Also, you could post this in legal.

Yes post it in legal and as a non-practising solicitor I will give her the same advice I gave her above

Your mum telling her is neither here not there, you are the one who the contract is with.

Just to advise she will have access to legal advise and representation from her insurer, so you may need proper advice.

I agree the wording is a bit ambiguous, but it's not the same as employer employee contracts as its her sale of services not you employing her.

Shalom no offence intended to you truly, I just thought it might help the OP more to post in legal, as a lot of people here are giving their personal opinion on here rather than legal knowledge,

however you made it clear that you knew what you were talking about due to being s solicitor. I was just trying to help the OP get more valid responses by posting in legal iyswim.

I have HR/payroll knowledge, not legal

I think the contract wording is a bit ambiguous but I doubt she would take you to court over it.

@Frusso I am aware that my contract is between us two however my mum picks her up the majority of the time and is named in the contract as such.

Advice would be fine as there is always CAB and I have a law degree so would probably be able to represent myself.

I was unsure if the wording of the contract made sense and whether it could be construed as meaning term time hence why I asked

As Judge Judy would say, you can't make a verbal agreement outside the 4 corners of the contract. So it doesn't matter whether you discussed it last year or not.

I guess she won't be getting a glowing reference from you.

Our last CM was an utter PITA when we left as well, it was beyond ridiculous. Our current CM is wonderful in comparison.

Hope you get a fair outcome, it sounds like you're fighting your corner.

She will definitely be updating her contracts now op! Well done for that text.

I would be surprised if she takes it any further and if she does then it will be her losing out financially.
Is she a local childminder? She's playing a dangerous game. Word of mouth from other parents is so important and she could well lose future business as a consequence of trying to swindle people.

Makes you wonder how many others she has tried this on with as surely many other dc's in the past have also started nursery and will have left her care.

If she threatens with solicitors letter/small claims court etc then be super polite in your reply and say you will await their correspondence :)

Good luck!

She may not be trying to swindle people. She may genuinely believe this is what her contract means.

Pacey childminding contracts say something along the lines of ‘notice can not be given in holiday times and notice periods in holiday time will not count until after the holidays finish’. Not exact wording. But it sounds as though she is thinking school holidays are the holidays from the contract, so notice can not run through them.
What date did you give notice? Is it the whole of September she thinks you owe for or just a couple of weeks?

The phrase she's talking about is on standard contracts but it looks like she hasn't bought these and has done her own, missing this off.
I wouldn't pay (ex Chm)

@Jaxhog no she definitely won't be! There were certain little things about her beforehand (like the aforementioned shoe incident) but this has just tipped it over the edge for me!

@Zoflorabore yes she is a local childminder. She was actually recommended to me by my old childminder who decided to give it up so I'm gutted she's turned out to be like this! It might not have been intentional but the fact she's insistent she's right and the contract isn't ambiguous is what I don't understand.

@Maryann1975 I'm not aware of PACEY terms but I would assume they'd still have to be written in to the contract would they not? I'm not familiar with how childminding contracts differ from standard contracts if I'm honest!

Pacey contracts say Notice "the notice period can not include a period of either party or the registered childminder's paid time off, or during a time when the childminder is not providing care or being paid in full." the reason behind it being that either party may not be available to look for alternative care/work personaly though if you had a running dialog with me over the previous term about transition to nursery and did not wait until the last day of term to give notice I would count notice earlier or discuss a discount/or only until Ive replaced option.....but if you gave notice at the end of term I would stick 100% to my contract as you haven't done me the courtesy of keeping me informed and effectively have not done much more than say your out of work tomorrow, why did you not give notice sooner?

I don't pay for lost property particularly shoes/hats/gloves/toys/dummies as they are things frequently thrown form pushchairs and as children face forward not seen, I do retrace steps etc. but not replace its a hazard of children I make this very clear in my policies and as part of my contract.

@jannier
I don't really understand the PACEY terms, surely they need to be included in the contract to have any effect? You can't just expect people to know about them without even including them.

Also, my CM works during the holidays its only my daughter who goes through term time!

I told her in mid July, that's 6 weeks when she only needs 4, I think that is sufficient.

I understand that children loose stuff all the time but the fact is my child was walking through town when she lost it. I'm pretty sure she would've said something to my CM but she obviously wasn't paying attention.I don't think making a small child walk around wearing only one shoe is very professional do you?

I’m with you that it’s not in the contract expressly written so she can’t enforce it. However from the other side I know how frustrating it is when people do this. If you told her mid July then presumably only a few days before your child left for good (our term here finished 20/7). I don’t mind taking the hit of no income of the hols when I know I will have income from a good family again in September. When it’s done like this, you literally have no income from the following week.

Anyway, I agree she can’t do anything about it but it shows you why some cms and nurseries have such crazy rules and regs like payment in advance, no pay no play, long long notice periods etc. It’s all because they’ve been stung in the past by a family who doesn’t give them and their income/family much thought or regard.

@GeorgieTheGorgeousGoat

That's fair enough and it is understandable that she wasn't told until near the end of term. However, just to clarify she does actually work all year including the summer holidays, it's just my daughter only went through term time!
I'm assuming she would've filled up her space during the summer holidays anyway as she runs a holiday club.

Just ignore her from now on and let her waste her money if she tries going through small claims,

For the PACEY terms to count she would have to use PACEY contracts where it would be written clearly on them. Which it sounds like it isn't.

I think she's making a mistake choosing this hill to die on. She's had 6 weeks worth of notice so it's not like you've been unfair. (I also think she should have told you at the time you gave notice that it wouldn't count and you'd be liable for September.) Word of mouth is so, so important to us childminders and it's really not worth ending things on such a sour note unless a parent has really taken the piss - 6 weeks notice is far from doing that.

I wouldn't mention the shoes though - if you felt she was liable then you should have brought it up at the time. Stick to the facts of the notice period and what's in the contract.

No I understood that and it’s lucky if she can fill it with holiday only children, it’s not a given though. It’s a pro that she offers TTO but she could easily not, or does but charges a retainer.

Certainly this happened to me this year. I lost after school siblings with only a week or so to go until the holidays and it’s thrown my finances in the air. It might not have changed anything money wise but I would have felt better had I been given more notice, especially when I went over and above for this particular family.

Just an aside. That holiday notice clause in the Pacey contracts is highly questionable. I read elsewhere that it has been challenged and overturned in a number of cases where the court ruled it to be 'unconscionable terms.'

This might explain why Pacey are constantly issuing new contract stationery and reword it each time. I really dislike the latest version (quoted in Jannier's pp) as I can see how it might totally backfire on either party trying to give a perfectly reasonable four weeks' notice.

Similar position to Shalom here..... the word "contractual" doesn't mean anything in that clause - for your CM to insist on 4 weeks' term time-notice, there should have been express reference to that. If a contract is unclear, it is (if you end up going to court etc) interpreted against the person whose contact it is. A bit late now, so possibly unhelpful.... - but I wouldn't have written your last sentence as there's a hint of a suggestion that your CM may have a point.

I'd forget about the shoes as you should have mentioned that at the time tbh.

If your CM comes back and tries again, I'd simply repeat that you have given her more notice than the contract requires and that if she does not agree, she's free to try the small claims court.