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

agree that she couldnt have been self employed - thats illegal for nannies and its the employer who gets the fine, so she has saved you a possible £3k fine and maybe a prison sentence

didnt reliese it was 7years, hence the over 2k - but again she is entitled to it

maybe the sneaky way round it is for you to offer her job back, but without taking her children (so leave with dad) therefore she wont/cant accept the job, and tech you arent making her redundant

but tech you have made her redundant, so you should pay her, just as you would expect and get pay from your job

Thanks to you all for your advice and comments. I gave her notice last March and she left in May but maternity pay kicked in then and went on until Feb this year, although I paid it all to her as a lump sum back in May 2008 as she wasn't coming back.

Technically her employment ended when her mat pay period finished. In Feb this year and that is the date on her P45 which in hindsight was probably wrong too now.

Hey ho. I am going to seek legal advice and have asked my employers HR dept to help me sort it out. I will post back when it is finalised for those that are interested.

Thanks for all your comments it has given me some more things to think about.

Dawn :-)

Dawn, from the Direct.gov website - Redundancy pay = "1.0 week's pay for each full year of service where age during year is 22 or above, but less than 41".

Ooooh, Dawn - I think I have found your solution. I just found an employment tribunal website that has said that the timeframe for redundancy claims is 6 months.
www.hegarty.co.uk/emp_tribunal.htm

I knew it was 3 months for unfair dismissal claims, but didn't know what it was for redundancy. I guess she can pretty much whistle in the wind because she has left it WAAAAYYYY too late!

Oops cross post, she is within her time frame then. I think you will have to pay.

Sorry OP

but what are you talking about ??

Nannies are not Self-employed. You havnt done any favour. You HAD to pay Tax and NI

I am soooooo glad I have always hired nannies who can only stay for a year or two. We go through a fair number of nannies. But, I will never pay redundancy.

Actually, if the contract said that this employment terminates when number three goes to school full time, is that not a fixed term contract? And does a fixed term contract not mean you are are not responsible for redundancy. Check this out with someone who is better qualified than I am to answer this question. My understanding is that when a fixed term contract expires you are under no obligation to renew. Although I think there are some limits on how long a fixed term contract can go on. And you may have had this nanny long enough that it would be considered permanent employment... a bit like common law marriage.

why are sooooo glad that you go through a fair number of nannies?

Is avoiding redundancy so much more important than continuity?

After two years, someone on a fixed term contract gets the same redundancy rights as a permanent worker. Direct.gov: Fixed Term Workers They why fixed term contracts are usually for under 2 years.
If the contract is constantly renewed... then at the 4 year point the employee is considered to be permanent.

I'm sorry that things haven't worked out how you'd hoped Dawn, but I really hate the attitude that nanny employers are doing their employees a big favour by treating them fairly and legally . She is a working mother too - I'm sure if your employer made you redundant you'd be wanting redundancy pay!

For £3000? Yep, I'll trade continuity for £3000.

Where do you get £3,000 from? Redundancy equals 1 week's pay for every year they work. Would you really rather be completely messed around for (minimum) 1 week a year trying to find another nanny????? If people were sensible they would put that money into a separate account every year in case they needed it. If they didn't need it because the nanny quit, they could use it to fund the finding of another nanny.

Sorry, it was £2000 something. Personally, I think it's crap that parents have to be employers in order to be employees. I totally sympathise with the OP here. I am well aware of the legalities of employing a nanny. I am not suggestion anyone break the law. I just think it shouldn't be the law.

People on here go on and on about how the nanny is legally entitled to this and entitled to that and equate it to the jobs parents' have as if parents are themselves a profitable business. It's really not the same thing.

"If people were sensible..."? Surely you are just trying to get a rise out of me. This thread just goes to show that being overly generous to a nanny (when you are not required to do so) may count for nothing when she wants to come back and take you for a ride. Obviousl, there are some great nannies around. But, then there are selfish twits in the mix as well.

As an employer of a nanny, I've always operated on the assumption that I owe my nanny the same employment rights that my employer owes me. That's why I pay her tax and NI, why I would pay her maternity leave if she needed it, why she has a contract with clear terms and conditions governing expected performance, and why I've always assumed that if we had to let her go, we would need to pay her statutory redundancy pay if she'd been with us for more than two years.

Not only is it the law, it's fair and it's appropriate. You can't employ a nanny and expect to be exempt from the rules that apply to other employers. Perhaps there's a different argument for allowing nannies to be self-employed, but as things stand why shouldn't a nanny be entitled to the same benefits as anyone else?

It's a much bigger responsibility than I think I initially realised. Had I known, I might have thought twice. But no-one absolutely has to employ a nanny - there are childminders, nurseries, grandparents, you can stay at home... I do think nanny agencies are guilty of not being nearly good enough at informing people about their responsibilities when they recruit. I have explained to a couple of friends that it's a serious business, with real responsibilities, and they decided as a result to send their dcs to childminders instead.

Lots of people have to employ a nanny to go to work. If you want to leave the house by 7:00 or arrive back after 6:00, for example. Or if you have 2 or 3 young children. Not everyone has parents or other relatives standing at the sideline ready to jump in when you need them.

Well yes Athene. Then you have to deside whether you should go for a nanny. If you do so then you have to accept that you are employer.

So wait Athene, do you just think nannies shouldn't have the same employment right as anyone else?

I think that employing a nanny is at the very least a business expense as the cost is incurred for the sole pupose of my going to work. I'm quite happy sharing what I can with my nanny -- whom I love by the way. But the taxes piss me off. So the OP has my sypathies. But, as I said earlier, I think she is going to have to pay her nanny out.

Maybe Gordon Brown could take nannie's redundancy out of all the money he takes from parents just so they can go to work. But, no no, he sees an opportunity to get yet more out of parents.

I have some sympathies with Athene here. We couldn't work without a nanny because of the different (i.e. not 9 to 5) hours that dh and I work.

It is a huge responsibility but one, in many ways, that we are forced to take on as no other childcare option can work.

I think it's a bureaucratic system designed for companies but then applied to individuals and so many situations arise like this because parents don't have HR departments and legal advisors of their own!

I treat my nanny fairly, I pay all the taxes I am supposed to and I do my best to make sure she is getting treated as any other employee would be but it is quite a large burden to place on an individual tbh.

I think the difficulty is maintaining a professional, legally apt relationship with a nanny at the same time as entrusting them with the care of your children (thus obviously wanting to be friendly and loving towards that person too i.e. gifts, extra holidays!). The two sometimes don't mix!

AtheneNoctua - that's the point, the OP hasn't really been sensible, and has now found herself in this position. Being overly generous is one of the least sensible things she could have done. Although the very least sensible thing she did was not finding out what her obligations were in full.

If you know what your commitments are by law, then you can plan to meet them and not be shocked to smithereens when it all goes wrong. If the op had done this properly then she would have realised that she would have been better off ending her nanny's employment a lot earlier.

If you prefer being messed around constantly finding new nannies, and having your child's care being disrupted rather than allocating 1 week's pay out of every year, then I have to say I feel sorry for you.

Actually, Sad, I think you have a very short sighted view of my history of nannies. WE have a had a wide variety of cultures and languages in our house. And while it is sad when one departs, I also look forward to meeting the next one and learning from her life's experiencces. I don't really see it as uprooting my kids. It would be much more difficult to have a nanny whome they had know for some 6 or 7 years suddenly leave. They get used to the turnover. They learn about change. That's a good thing.

Oh i love the 'variety of cultures and languages' bit.

Well that's very different to what you said, which is

If your hire short term for a different reason, then that's something else entirely. And out of curiosity, how do 'you' learn for their life experiences? A nanny wouldn't normally be there when you are, would they? Or are they live in?

Glad I could brighten your day.

The nanny thing is very simple, really.

If you use a nanny for childcare- that makes you an employer.
As an employer you have certain responsibilities if you're not up to meeting those responsibilities the answer really is quite simple- don't employ a nanny!

If you want to use a form of childcare that doesn't involve tax/redundancy etc etc then it's really not rocket science- use a childminder or a nursery. And yes I realise that might not suit you or meet your needs but you can't have the flexibility and expertise of a nanny without being an employer.