Unpaid leave

[BestArty]

My husband & I both work complex shifts. We do weekends / nights & long shifts 13+ hours. We therefore get a lot of time off in lieu.

We try not to work the same shift pattern so we try to cross cover childcare so our nanny does 8-6:30 Mon-Fri. She is obviously entitled to her annual leave & if she does need to work extra she gets paid overtime / time off in lieu.

Given that we get so much time off in lieu & she doesn’t because she doesn’t work many extra hours, we have asked the agency who do her payee & also supplies us with a contract to add a clause about unpaid leave.

She agreed & signed the contract. She is aware that in January she had 5 days unpaid leave.

However, since then we have given her notice & there’s a fair bit of animosity so I want to triple check that this is all legal, so that it doesn’t blow up in our faces after she leaves. The agency that sent us the contract assure me that it is, but they are accountants not lawyers.

So I was hoping that someone here knows?

Many thanks for your help,
Arty

When a contract ends I would calculate the total contracted days and then calculate the Statutory Holiday based on that number of total contracted days.

Then I would look at what your nanny has physically had off as paid leave. Make sure that the Statutory holiday is at least equal to what they have physically had off as paid leave.

I do not get how your unpaid leave works... the contract gives working days with hours, so I would expect those to be paid each week regardless of you using them or not.
If your nanny requested additional time off beyond statutory entitlement, that could be unpaid leave.

If you told your nanny not to come in some days then I would expect those days to still be paid as per the contracted hours.

I don't think the contract is very well worded. The word lay-off isn't mentioned for a start.

You would need to have something in the contract that mentioned unpaid lay offs to deduct wages. The employee is also entitled to guaranteed payment of £28 for the 5 days she was laid off. There's a bit more info here

www.gov.uk/lay-offs-short-timeworking

If you're getting a new nanny, I'd be wary of having any such clause in the contract. It's very unusual and it's bound to cause problems especially in the ambiguous way it's worded in the contract.
If you only need someone 4 out if 5 days, you could advertise for someone flexible. But bear in mind that they could then just choose not to work the 5th day if they were required.

Underneaththeash

Thank you so much! I am clueless. I just spoke to ACAS & they said something about lay offs too.

With this nanny it doesn’t matter hugely as she is leaving before the 12 months are up so she took 26 days off, had accrued 19.2 so the agency is subtracting 6.8 days.

Given that the unpaid leave was already made it into the January payslip which now cannot be rectified I was thinking of writing in the February leave: 5 days’ underpayment for Jan, then 26 days paid leave (instead of 21) & subtract 19.2 that she was entitled to, which essentially in terms of final amount won’t make any difference at all but perhaps it will rectify this issue of “unpaid leave” versus “leave taken over & above accrued leave”?

Would this make it better? I hate being an employer. Only thing I need is someone trustworthy & nice to look after my kids. 🤦🏻‍♀️

so she took 26 days off, had accrued 19.2 so the agency is subtracting 6.8 days.
That would be right for someone leaving part way through a holiday year.

I don't get the next bit... are you saying that January payslip had 5 days pay deducted? If so then that's reasonable. Feb payslip would then have the remainder of the adjustment (1.8 days) deducted.

As long as everyone involved understands how the pay is being calculated I don't see there being any problem. What you want to avoid is anything being raised as a problem after the final payslip and P45 are created.

I hate being an employer.
It's a challenge at times, you are payroll, HR, management all rolled into one. Fortunately some of it you can subcontract but end of the day you deal with it all.

Thank you nannynick!

Did she choose to have that time off or did you required her to have that time off because you did not need her?