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

Actually, all the legal speak reminds me of a convo I had with my employer the other day. She hires APs normally (technically I'm not one as I'm British, but I have an APs job which I'm happy with!) and regularily checks laws and things, though there aren't many laws regarding APs, only guidelines. Why is this? Surely there should be something regarding this?

I think, Pixi, it is because an Au Pair isn't techinically an employee. Even if you are British, you don't work enough hours to be taxed and I believe (but am no expert!) that you don't require a contract, legal entitlement to holiday, SMP, SSP, SPP, and so on.

Okay, I just tried to find laws but there are only really recommendations. The only legality you need is a letter of invitation to employment (not the best way to word that actually...) and the recommended pay is £55 a week! That's cheap and slave labour. I did wonder why I was only offered that by some British families. I'd never pay somebody that little!

I remember one family offered me £55 until I registered with ofsted and it would become £150 a week, but I'm not qualified so I couldn't register with ofsted from my understanding?

I'm sure under-reporting is widespread. Wonder if Donal MacIntyre will get onto it now that he's lost Strictly Come Ice Dancing or whatever it was he was on.

how this topic ended

i totally understand that many people dont have £2k+ floating around but this idea

"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"

sounds good - do any of you employers really begrudge paying your nanny one week extra pay per year, yes if they have been there 5+years it does get exp, but also think of the benifits that your children have had with the continual care and love of one nanny

the op nanny is only wanting what she is entitled to, just as if the op got made redundant she would want what she was entitled to

yes many of us nannies are lucky to have a job in this climate but employers also remember that if you didnt have nannies that you prob wouldnt be able to do your job

snickersnack "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"

sums it up perfectly

Blondes
i agree. Also snickers says this: '..not only it is the law, it is fair and apropriate'. In fact her whole post is a good example of a responsible employer and a person who respects others.

Haarriet is also on the spot about under-reporting. it is true.

As for the OP i think there is more on emotional level if you read through the lines. Did you notice the bit about 'the nanny had another baby even she is in unstable relationship'? - maybe she shouldnt even reproduce?

Au pairs don't exist any more anyway. They were a visa status which is now dealt with under the points scheme and the youth mobility initiatives. They're part-time mothers helps however much the spirit of cultural exchange might remain and as such are employees and covered under employment law.

Pixinanny - do a 12 hour course, take a multiple choice test and you're qualified enough to register with OFSTED. Or MNT offer a distance learning equivalent. Of course you'll need the paediatric first aid and insurance but I'm of the school of thought that you'd be crazy to work without them anyway.

I can understand why you are upset and you kept her on for longer to help her out. However, technically she probably is entitled to redundancy pay. Your childminder hasn't 'stolen her job' as your childminder is self employed running a business of her own and you have engaged her services rather than hiring another employee. Therefore, I doubt she can claim unfair dismissal or demand her job back so you shouldn't need to pay any compensation for that. You may owe her holiday pay and notice pay too - depends what your contract with her says regarding how notice needs to be given and also what happens with holiday pay - e.g. does it expire if not taken by a certain date and was that date passed by the time you terminated her employment? Really I think you need someone to look at the contract and advise you - possibly your local council has some walk-in legal advice centres who could help?

the most redundancy pay is £330 see here

all employers could set up some kind of direct debit to an account and if they paid £27.50 a month or £6.34 a week this would cover their nannys redundancy

I would like to think that I am worth £6.34 a week to my mb

But isn't statutory redundancy pay less than actual pay? so the 5 weeks pay mey not necessarily be 5 full weeks, but 5 statutory weeks? CAB, or ACAS should have the figures.

Blondes I would avoid posting links to Nannytax website for anything employment law related if you can; more often than not it is out of date and/or inaccurate ime.

Redundancy pay, now capped at £350 not £330.

Most nannies earn more than £350 gross a week..........

point noted flowerery - its a shame nannytax hasnt got their facts right as thats where nannies get their info

mummyp - think flowerey is saying the most you would pay is 350 per year regardless of how much they earn

so a nanny would be worth £6.73 a week

'Tis a shame, yes. One of the things that put me off using them to do my nanny's payroll - I had a flick through their website, found a few corkers and lost all confidence! That and the fact they were most expensive...

Just to update you all. This issue has now progressed to an Employment Tribunal and I am waiting for the date of the hearing!

Thanks for all your comments, good and bad.

I am not expecting to win as all parties I have spoken to for advice have never come across this sort of employment issue before, even ACAS! Even the Tribunal forms do not cater for this situation, asking questions like
"What is the nature of my business",
"How many people do I employ"
"What locations do I operate from"

Err, I don't have a business, I don't employ anyone, and have no locations!!! No really appropriate questions methinks!

The whole basis of the Nanny's case is that I did not give her notice or notice pay, when in fact I did in March & May last year. She is claiming to have not received the letters even though I handed them to her in person and we sat down and discussed it. Bit of an integrity issue there.

Dawn

How awful for you Dawn - nanny is hossible and possible controlled alot by boyfriend. I hope it all goes well for you and that you win.

Do keep us updated if you are happy to

Best Wishes xx

AngelNanny - maybe the boyfriend is controlling but really I think he's probably only pointed out to her what she is legally entitled to. If she was told that the job would not be there after her maternity leave - or even if she was told in March (or May?) that the job was no longer there then she was being made redundant, and so legally entitled to redundancy pay. Being paid her maternity pay is not the same as redundancy pay. She would actually be entitled to both if the job was not going to be there at the end of her maternity leave.

I feel the employment tribunal will sort out when the finish date actually was and award redundancy payments up to that date.

Have you paid the redundancy pay? TBH if you have paid that part of her claim, then the ET is going to be fairly neutral when you both turn up to discuss if you did/didn't give notice; if you haven't paid the redundancy payment then the ET is going to be leaning in favour of your nanny form the start so you will probably lose on both counts, even if she lies about not receiving letters.

By the way, this will be fairly straightforward for the tribunal: they will have come across this hundreds of times. If you haven't paid the redundancy money then you really should pay it now; chances are she may then drop the rest of the claim, given that you did give her clear notice. at the moment you have done her a big wrong in not paying redundancy and she is just pushing it for as much as she can get. Not honourable, but TBH you were in the wrong in the first place.

You may not like it that you have to pay redundancy, and you may think it unfair, but it is the law and it is very clear cut.

I know that the employer can reclaim 100% of maternity pay (plus a % for compensation for small employers) from the government. So, effectively it costs the employer nothing (except the hassle and stress of finding temp/alternative childcare!).

But, I wondered if anyone knew about accrued holidays during maternity leave? Is this down to the parent to pay? What happens if nanny decides not to come back to work? Is she entitled to be paid that holiday money? My last maternity leave was years ago so I realise that rules change, but when I didn't return to work after having my ds my final payment included accrued holiday pay - though this was for a company rather than a small employer.

it's down to the parent to pay

Message withdrawn

dawn - what is the tribunal for?

the nanny was made redundant as you didnt need her any more, and therefore she is entitled and desrves redundnacy pay - just as you would be if you were made redundant from your job

you choose to keep her on when pregnant with no 2 - you could have easily said the job had come to an end

i do understand it is a big payment if a nanny has been there for 5+ years but she is only asking for what she is entitled to

as i said in another thread somewhere, at the moment redun pay is £350 - if all employers put into a saving account via direct debit £7 a week - this would cover the redun pay (while at £350) or could go towards paying agencys fees if nanny left before 2 years

i would like to think that I am worth £7a week to my employers

Why does the OP need to pay redundancy when she gave the (ex) nanny notification? Both sides can terminate a contract given proper notice, so cannot see why it's a redundant situation?

You can terminate a contract for reasons that are in a contract ie. gross misconduct, insubordination, etc etc. not just because you don't want the nanny any more and fancy a change to a different nanny. If you are terminating a contract because you need less hours or are going to change to childminder or nursery, for example - then the job is no longer available and it is called being made redundant.