Nanny pay & contract Problems - Help

[DawnNAPM]

Hi, we have had a Nanny for more than 5 years. In that time she has had one child and returned to work bringing her daughter with her.

We went down the normal route of maternity leave and pay etc and by the time she returned to work, all of my children were at full time school. At this point we agreed to reduce her hours so that she only came in before school each day and after school each day. i.e nothing in between. Her original contract with us stated that her employment was only until all 3 of my children were at fulltime school so rather than let her go completely we agreed to reduce her hours. She also got 4 weeks paid holiday (2 of our choosing) and 2 of hers and at least 2 additional weeks off on top of this as well as all hers and her childs meals whilst at my house, petrol money, and at least one afternoon or morning off a week.

We also verbally agreed that this new arrangement would only be for the 1st year that my youngest was at school and then we would not need a nanny any more. After my youngest child had completed his first year, we agreed with the Nanny that she would stay on a bit longer just to make sure my son was happy but that we would review the situation regularly as we really did not need a nanny any more. She was happy with this situation as I believe she knew she was onto a good thing with us in terms of what we actually expected of her (no cleaning or ironing) and what she was being paid. In fact I got feedback from other local mums and friends etc. who repeated that the nanny had been overheard saying she would never leave us as she was on a cushy number!

My husband and I decided, during half term 2007 that we would review the nanny situation as we were paying a lot for very little (apart from continuity of care) and we agreed that when the nanny came back from the holiday that she had chosen to take during half term !! that we would give her notice and ask her to finish at Christmas. This was effectively giving her 2 months notice.

When the nanny returned from her holiday the first thing she did was to announce that she was pregnant with her 2nd child. This was a bit of a shock as we knew the nanny was in a fairly unstable relationship, with significant money problems etc so we were a little surprised.

However, as a direct result of her announcement we felt it would be unreasonable of us to give her notice as she would never find another job bearing in mind she already had a toddler that she bought to work with her. So we kept quiet and left things as they were until after Christmas. In the new year some 5 months before her baby was due I spoke to her and also confirmed in writing that that we would not want her back once her Mat leave had finished as we were going to get a childminder or find someone for after school care only. I also explained that we were actually going to let her go the previous October but due to her PG we kept her on.

All was going well, mat pay was all sorted and paid to her up front as a lump sum again with written confirmation that she would not be needed back after her mat leave ended.

I though that was the end of it we found a local childminder and all my children were happy. When the Nanny actually left I said we may be able to use her for come casual work when she was ready to return but not in a Nanny capacity but maybe for occasional after school days etc. Also on the basis that I could not and would not want her to bring both of her children with her. At the time she had no one available to look after them so it was a bit of a non starter.

Now the bombshell... (thanks for hanging in there if you are still reading!)

She has now written to me saying her and her partner are hard up and she wants her job back, also that she wants redundancy pay, holiday pay for her mat period and notice pay. To say I feel that I have been HAD is the understatement of the year. Why oh why didn't I let her go when I had originally planned to rather than keep her on to help her out! I have copies of the letters I have sent her which she now claims to have not ever received and she wants me to do the right thing and pay her off....her words not mine. I have provided her with her P45, when her mat leave pay period ended, admittedly a little late as I had forgotten but I really do not see why I should pay her any more money.

It is not my fault she is hard up, I heave treated her fairly for more than 5 years, my oldest child is now 15 and I made it quite clear to her at the start that this would not be a Job for Life etc etc.

I know this post may provoke some debate but I do not think I have been unreasonable and in fact have always paid her for any extra hours, babysitting, generous gifts at Birthday and Christmas and on both births etc. No I need to decide what to do. My husband is adamant that we tell her to go away and to top it all she has been making snide comments to my new childminder that she has "stolen her job" etc etc.

I am gutted and cannot see our family ever maintaining a relationship with her but am in a quandary as to what to do about the pay situation. I have spoken to the redundancy helpline who were useless and also to ACAS who have said that they think I have a case and that if she took me to tribunal I would be treated fairly no one seems to specialise in situations like this regarding nannies as it is unusual.

At the end of the day I did not treat the nanny unreasonably, the fact that she was pregnant did complicate matters but with my children the ages they were I really did not need her anymore and she knew this was the case. I was actually going to give her more than the contracted amount of notice. She could have started looking for another job when I originally wrote to her about it or as soon as she went on Mat leave etc. But now her money has run out she wants some of mine.

Any comments/advice or help would be much appreciated.

Dawn

I appreciate that you are frustrated, but unfortunately most of what you have posted is completely irrelevant I'm afraid. The basic facts are that you made her redundant, (perfectly reasonably and understandably), but you didn't follow a proper procedure and didn't pay her redundancy pay.

Other ways in which it was a cushy job and you were generous, gave her birthday presents and babysitting, and the fact that you decided not to go ahead with the redundancy at one point because she was pregnant unfortuantely don't affect anything at all. That's not her fault.

When did her employment actually end? The bottom line is if you are making her redundant, she is entitled to redundancy pay and notice, and if she was employed during her maternity leave she is entitled to holiday pay for her maternity leave as well. If her employment ended less than 3 months ago she can claim unfair dismissal, but if it was longer ago than that there's not a lot she can do about it now.

What was in the letters she is claiming to have lost or not received?

Very sorry to hear about your problem. All I can say is that I think that you need to take legal advice asap - this is an employment law issue, which seems to me to circle around the question of whether your nanny was entitled to redudancy pay, holiday pay and notice pay (not sure what the difference is to redundancy pay) when she left. You could try a service like nannytax, which does offer some legal advice or go to an employment lawyer. Good luck!

Interesting that you say it's 'not your fault she's hard up'. That's hardly the point is it? Whether or not someone's hard up doesn't make them more or less deserving of money they are entitled to.

Imagine it was your own daughter. If she'd been made redundant from a job but hadn't had money owing to her you'd be up in arms and getting her to try and get everything she is entitled to, regardless of how well her employer may have otherwise treated her.

I can certainly see why you are annoyed. You have been very generous to her over the years and thanks you are getting that she is throwing the book at you. Unfortunately, the book will dictate your responsibilities.

If your contract was not fixed term, you do probably owe her some redundancy pay. I don't understand how she could claim unfair dismissal (but I know flowery will know more than I do).

When did your contract actually end?

AN the unfair dismissal would be about the way she was dismissed, ie without a proper procedure and pay. It seems fairly clear that Dawn was perfectly reasonable to dismiss her, in fact could have easily done so sooner, but if she didn't do it correctly that's where there's a problem.

But she gave notice? Is that enough?

Isn't that enough?

How do you mean is that enough? Enough as in instead of paying her in lieu of notice in one go? Yes notice can be given in terms of time rather than a lump of money, but if an employer doesn't follow a fair dismissal procedure and doesn't pay redundancy pay in the event of redundancy being the reason for dismissal, then there is a problem.

I am just wondering the idfference I guess. I have only ever been given notice when the family no longer needed a nanny so I have always had the same experience.

If a family no longer need a nanny, that means that the job of nanny no longer exists, which means the nanny is redundant.

If an employee has been there over a year, there has to be a reason for dismissal, and if the reason is the job is no longer required, that reason is redundancy.

If Dawn's nanny has been employed over 5 years, she will be entitled to 5 weeks redundancy pay (may vary depending on her age) as well as 5 weeks notice (one week for each complete year of service).

Thanks loads for your replies.

The 1st letter clearly stated that she would not be required to return to work and that I required confirmation and 4 weeks notice of when she was actually leaving. The 2nd letter broke down her mat pay and and also confirmed that we did not want her to come back after she left. I even said that her employment with us had come to a natural end and had only been extended by us at the end as she was PG and we felt that letting her go would have been unfair. She was very grateful for this at the time.

The original contract which was quite basic just said that she would be employed until all 3 of my children went to full time school. I did not issue her with a new contract on moving to part time hours as it was all agreed verbally, this being the sort of relationship we had. We agreed that it would not be for ever and she knew this right from the start.

Whilst I did not specifially mention redundancy I clearly said that we did not want her back once she had left. She was happy with this at the time. Now her boyfriend is in sales and struggling as she has she has stated in her letter to me ! she now wants to exercise her right to return to work as he will look after their children.

I do not believe that I should have to pay her redundancy as her contract was only ever for a set period and had been verbally extended after that. Has I known that this might happen I would have done it very differently and let her go after 2 years thus meaning redundancy would not be an issue. As we had discussed and agreed a specific term I did not let her go but kept her on.

The redundancy helpline were useless other than to tell me if I had to pay then it would be £2000+ !!! I don't have this sort of money spare! (who does)! they said if I lost and I couldn't pay then I would have to declare my business insolvent.....I don't have a business, I am an employee of a big firm on PAYE. How on earth can I do that ?

I feel really bitter that it has gone this way as my children all really like her and she has been a friend to my family for a long time.

I truly do not believe I should pay her anything and your are right if she was my daughter I would probably feel differently but morally, I feel that she is in the wrong here.

I have written back saying how disappointed i am with this situation and the tone of her letter and now I am considering making her a payment of equivalent to 1 weeks pay as an exgratia amount just to make it go away. This in itself is over £300!

Thanks again

Dawn

Whether she knew from early on that her employment would be likely to come to an end at some point due to the ages of your children doesn't relieve you of your responsibilities as an employer.

Knowing redundancy is coming doesn't mean an employee isn't entitled to redundancy pay when it eventually happens. This wasn't a fixed term contract (which doesn't necessarily get you out of redundancy pay anyway), but even if it was, fixed term contracts automatically become permanent after 4 years anyway.

She was a permanent employee who you made redundant without a fair process and without the pay you owed her. I understand that you are frustrated and felt you had a good relationship with this woman, but goodwill you may earn as an employer by treating your employee well doesn't mean they won't (or shouldn't) claim money owing to them when the employment is ending. Why should it?

Given the fact that you owe her this money, I think complaining about the 'tone' of her letter is a bit rich tbh. It sounds as though she was perfectly happy with the situation until someone looked into it and pointed out to her what her rights are. She has now discovered that you have not paid her a significant sum of money you owed her. She probably feels completely taken advantage of and betrayed by someone she previously had a good relationship with. She is feeling screwed over and surely in those circumstances a letter in that 'tone' isn't surprising?!

It never ceases to amaze me how many people employ a nanny without looking into and understanding the responsibilities they have as an employer. Nannies have rights just like everyone else, and the fact that the people who employ them tend to be private familes doesn't mean they have any less rights than someone employed by a supermarket or bank or whatever.

I never got redundancy pay. Not sure you had to back then and tbh I ususally went straight to another job so it wouldn't have occured to me anyway.

my ex employers were the same, they made me redundant after nearly 5years as youngest was at school (fair enough) but they did quibble over the redundancy pay - but after speaking to cab and nannytax they agreed to pay me 4 weeks

your nanny is entitled to 5 weeks pay as flowery said - if it was only care after and before school, what did you pay your nanny?

yes it will be a lot of money to find, but sure it wouldnt be £2000+ unless you pay her £400 aweek

your nanny isnt asking for anything more than she is entitled to, and although it was very kind of you to keep her on, that isnt her fault

hope you sort it out, but just remember that if you lost your job, you would be paid redundancy - so why shouldnt your nanny?

Is she asking for redundancy based on the original full time contract, or is it based on the part time hours that continued after the original contract expired?

I do feel for you. She is taking you to the bank on a technicality. and THIS from someone you trusted with your most precious posessions. She sounds very ungrateful. She obviously new the situation and was happy with it until she realised she could make an extra buck in her time of need.

for this unpleasant end to what was a good relationship.

Thanks for your comments FB, yes you are right I probably did not really look into it enough all those years ago and did not for one minute think that we could end up in this situation.

I also had no idea that I would potentially have to pay any redundancy pay, whilst I had employed a nanny I am not a city high flier, nor am I rich. I have not budgeted for this nor do I have the money.

I have paid her taxes, employeers NI and to boot I have also paid tax and NI on this money before I paid it to her. Why should I have to pay any more. When Redundancy was first mentioned I actually thought that the Inland Revenue would pay it (like they do with maternity pay) although I had to pay that first and claim it back. It's not like I'm a big firm with lots of assets. I cannot afford it.

I'm a hardworking mum with 3 children who has a big mortgage and I live to my means. In my view it is really not fair that I should have to pay any more. I guess I may try to do the same if I were her and no doubt she will have a differnt version of events than mine but its ME that has to pay not the government and right or wrong, despite what we agreed between us, I am taking it personally.

The worst outcome is that I will have to pay just over £2000 but that could takes months as it would have to go to a tribunal first. So I may just sit tight and see what she does next. I gave her written notice in March last year and she did not write to me until Feb this year so I am not sure if she can actually pursue it now anyway.

Thanks

Dawn

Her weekly gross pay on leaving was £320 per week plus expenses for petrol etc and her food and her child's food.

Dawn

i assume then that she would be paid £320 X5 so £1600

how did you get to £2k figure?

Including her time off for Mat leave she has been with us for just over 7 years. = £2240

Dawn

Check what your letters have said carefully. For her to have continued working for you after the birth of her 2nd child would have necessitated her bringing her 2 children with her, which is a significant change in the contract which with your alteration (verbal, but that is irrelevant as it was acted upon). In effect, she could not do the job that she was hired to do.

You could always ask her if she is willing to accept her position back, but on the condition she had it on the previous term, ie, only the first child can come to work with her, and she has to work the same hours. You have absolutely no obligation to permit her to bring her 2nd child to work with her. Chances are that she couldn't continue in that position anyway, so in effect would be resigning, not being made redundant.

Of course you have paid her taxes etc etc. She was your employee. You weren't doing her a favour by paying her taxes - it was your legal responsibility.

I can see how this must have come as a shock and rankle with you but can you honestly say that if you were in a situation where you were entitled to receive £2000 you would forego it? Of course you wouldn't. Redundancy pay and notice is one of the additional costs of having a nanny I'm afraid.

If you fight this she will go to court, almost certainly obtain judgement and you'll have all kinds of costs added on as well.

Thanks SadMarg and that is exactly what we discussed at the time and she agreed that she would not be able to bring both children with her so not only did we not need her, she couldn't do it anyway.

Now her own situation has changed, i.e. her partner is struggling at work, she is saying he will look after the children and she will come back to work! Technically at the time she agreed that she was putting herslef out of a job anyway as she had 2 under 3s and no childcare of her own.

Dawn

Thanks Susie but ACAS have told me that a compromise would try to be reached first and that it would probably not end up in court and that if I could not pay (which I can't) then the Government has some sort of redundancy fund that would pay it and I would have to pay them back, by way of an attachment of earnings order etc. Not sure how right this is tho?

Whilst I wasn't actually doing her a favour, I actually wanted her to be Self Employed from the beginning as I was myself at the time but she could not manage the tax etc. So i agreed to paying her net weekly......another mistake on my part it seems!! And yes I have been ignorant about the redundancy but that is not just the issue here its about morals, about how I treated her about even letting her come back to work in the first place and bring her child with a minimal reduction in pay. How I wish I could have brought up my first child in my line of work with no childcare costs.

Maybe I should retrospectivley bill her for using my house as a creche for her own child for the last 2 years!

Sorry I'm trying not to rant and I do appreciate all your points of view.

Dawn

I really, really do understand your frustration but I'm afraid that the law has very little to do with justice or morals!!

She couldn't have been a nanny and self employed so that option wouldn't have worked for you anyway.

I hope you manage to work something out. I would try to avoid any kind of legal action if you possibly can.

She couldn't have been self-employed anyway given the nature of her relationship with you.

Not sure how 'morals' are involved. However well you treat your employee, it doesn't relieve you of your responsibilities, and her wanting what she is rightly owed as any employee would doesn't show any lack of morals on her part.

You say you gave her written notice last March, that's fine but when did her employment actually end with you? That's the key. Was it at the end of her year's maternity leave? She can only claim within 3 months of the employment ending. When she was given notice is irrelevant, it's the end date that's important.