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Paid childcare

Discuss everything related to paid childcare here, including childminders, nannies, nurseries and au pairs.

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Original poster

Can my ex au-pair take legal action against me?

73 replies

Rebeccash · 26/04/2009 22:39

Hi there

I am a lurker on this board and recently had my first ap who lasted 8 weeks. I gave her one weeks notice to leave after putting up with : her doing no house-work (despite outlining clearly what needed doing and giving her a time-table: her role was only 2 hours childcare per day, the rest some house-work), her being ill (and paid) for 2 weeks but well enough to go out clubbing a number of times during her sick leave, having her sister to stay for a week as holiday (not arranged: she was meant to still cover childcare but didn't) and leaving all of their mess for me to clean, having male visitors over when I asked her not to and generally not being any help. So whilst her sister was here i told her she must have this week as unpaid holiday as she clearly had no intention of doing any work and they ate me out of house and home. Following a couple of heated discussions later in the week i gave her one weeks notice to leave and offered to pay her airfare to France which she refused. Two days later she left whilst i was at work without informing me and took all her things. now she has contacted me saying she has been in touch with ACAS and I owe her the money from when her sister was here and a months money as notice. I was under the impression au-pairs were not employees and I had acted reasonably. She says I left her homeless and should pay. (I offered her a flight home but she wants to stay in the UK).

Please advise, very stressed by it all and having to juggle work/childcare

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Original poster

Rebeccash · 27/04/2009 16:09

I have paid her notice and everything except the one week. The reason I said she would have to take it as unpaid holiday was because: 1) she didn't do childcare as arranged 2)her sister was meant to be staying elsewhere but stayed at mine and ate me out of house and home. By this point I was also very cross with her for running up an excessive phone bill. Since leaving she has refused to return my keys. I subsequently have had to change my locks. I would pay her the week but she is demnading 5 weeks money and I don't want her to think I owe her the rest. I have taken on board all the points about contracts etc and won't be making that mistake again.
Thanks for all the replies

OP posts:

AtheneNoctua · 27/04/2009 16:46

I would deduct the cost of changing the locks from her final paycheque. I would also deduct the cost of her sister staying (i.e food bill).

Then, I would fire her for not showingup for work.

I wouldn't give her a penny. Let her sue you. It will cost her more than she will get from you. And yo can always pay up at the last minute if you think you will lose -- which I would think is very unlikely.

I once had an upset x-nanny who threatened to sue me in the Polish courts. Needless to say, I don't believe English employment law is governed in Poland.

Original poster

Rebeccash · 28/04/2009 10:02

Thanks
I really feel so stressed about it all and it has made me very very nervous about considering another ap but I can't justify the cost of a nanny as its not that much childcare. I only have one ds who is 7. All the advice/support is much appreciated.

OP posts:

flowerybeanbag · 28/04/2009 10:49

How about a childminder Rebeccash? Lots of childminders do school drop-offs and pick-ups and would be cheaper than a nanny and less stressful than an au pair.

Original poster

Rebeccash · 28/04/2009 11:03

Hi there
I looked into it but childminders in my area either don't start work until 8am (I need to drop off at 7.20am) or are fully booked. Will keep asking around for newly registered ones though.

Thanks!

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mummydoc · 28/04/2009 13:45

sorry you had abad experience, we are in the process of recruting our first au pair , similar to you only need a bit of help and could n't find any one local to do it, i have decided after reading lots of threads that you have to give it go and that lots of people have great au pairs ( well i keep telling myself that as getting very nervous about the whole thing) good luck with the next one

Original poster

Rebeccash · 28/04/2009 16:39

Thanks. She has just emailed me to say if I don't comply with her pay by 3rd May she will commence legal proceddings. (sad)

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Original poster

Rebeccash · 28/04/2009 16:39

Sorry that was meant to be sad face icon

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DadInsteadofMum · 28/04/2009 16:55

It is almost certainly posturing, be calm.

Mummydoc I have a great au pair, yours will be too.

flowerybeanbag · 28/04/2009 19:41

I'd just let her tbh. If she genuinely does issue you with a tribunal claim, you can decide then how you want to respond, you won't have lost your chance to pay her.

Original poster

Rebeccash · 28/04/2009 20:05

Ok thanks

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HarrietTheSpy · 28/04/2009 21:36

If she does file - and I presume she would have to give some details, or you could give a foreign address as well I guess if it's required - I would be tempted to counter claim for costs relating to her sister's visit and costs for changing your locks. Do you have any sort of paper trail where she refused to give the key back?

But that migth be quite an immature response...the right thing to advise is what flowery and diom have said: be calm and let her stew.

Millarkie · 29/04/2009 19:14

She is talking nonsense on the 1 month notice issue so I would guess she is trying it on and has taken no advice at all. Do what Flowery says (she's the expert) ignore and see if she tries to take you to court.
(However tempting it is to counter-claim for the cost of hotel services for her sister and the new lock!)

FabulousBakerGirl · 29/04/2009 19:17

You should always have a written contract and the trial period is specified in that.

sarahmuk · 30/04/2009 18:15

Hi,

you can stop fretting. she has no legal grund to stand on as she was not an employee. plus she waslked out on you. The only obligation and i stress obligation is a 2 week notice period by either party, I belive this is the case.

willowthewispa · 30/04/2009 18:33

In what way was she not an employee?

frannikin · 30/04/2009 18:33

sarahmuk she was an employee as discussed further up the thread. APs are classed as live-in domestic employees, exempt from minimum wage and, if earning under the weekly threshold, tax/NI but otherwise they have the right to be treated the same as any other employee. The term au pair relates to a now obsolete visa status.

AP employers - please for everyone's sake face up to this fact and stop deluding yourselves with this age old cultural/linguistic exchange ideal! It was nice, it's still laudable but unfortunately it doesn't exist any more. As the OP has found out, and this honestly isn't intended as a criticism, if you start everything on the correct legal footing then you're so much safer later on.

Original poster

Rebeccash · 30/04/2009 19:47

Hi there
Yes I know I should have had a contract and I realise now an AP is an employee. She is still sending me threatening emails/texts and I am very anxious, I know I was wrong not to have it in writing.I was foolish, I treated her as part of the family (I genuinely was nice to her) and expected the same back.

OP posts:

lizziemun · 30/04/2009 21:34

Tell her to get it in writing from a solictor and you will deal with them directly via your solictor who you are seeing about this matter and about her threatening emails/text messages. Also to see what action you can take against her and her behaviour in your home not doing the job which you employed her to do. Then stop replying to her texts/emails.

I bet she leaves you alone once you have called her bluff.

BoffinMum · 08/05/2009 23:10

FWIW I bet she wouldn't be daring to do this if there was a man about the house. She's trying it on.

Flowery speaks wise advice as ever here - ignore the silly bint. If it escalates, slap her with a counter claim well in excess of her claim (keys, sister's accommodation, etc etc). That should see her off.

HarrietTheSpy · 09/05/2009 08:05

Rebeccash
What happened in the end? Have you heard from her?

Original poster

Rebeccash · 09/05/2009 13:13

Well i emailed her and asked her to stop texting/emailing demanding money and to only contact me through my solicitor. I also stated that if she wants to go ahead with legal proceedings I will be counter-claiming. I heard nothing for a few days then a letter arrives from a COmmunity Legal Centre she has visited saying if i do not pay her within 28 days she will take me to a tribunal. She has told them a load of lies including: I didn't pay her for 3 weeks (I paid her in advance on a Monday), that I didn't pay her notice (I did, 1 week) and that she didn't take any holiday or sick leave whilst working for me (she took 1 week holiday whilst her sister visited and had several days off sick which i paid her for). I have an appointment wih my solicitor on Tuesday. I am seriously beginning to think either she is completely mad or a con artist.

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Original poster

Rebeccash · 09/05/2009 13:13

OP posts:

frannikin · 09/05/2009 13:50

I'm beginning to think the same.

Can you prove in any way that you paid her? Will anyone else witness that she took holiday/had sick leave? Did she visit a GP when she was sick?

Good luck with the solicitor. Take every single piece of paper that might even be related - bank statements showing cash withdrawals if you paid her cash, e-mail correspondance....

Was she working for you for less than 2 calendar months? You legally have up to 2 months to provide her with a written statement of employment so you could be excused for not having a contract infor from here

I hope everything works out for you. I think she's being very, very unreasonable.

JenniPenni · 09/05/2009 14:19

She's trying it on, that's for sure

Start getting your evidence together. Keep all emails (print them out), keep texts (even type them up and print them out), as mentioned above - anyone see her sick/GP?, bank statements (reeipts?) etc. Get letters (written proof) from them. State the dates she did her duties (school runs etc.) and the days she didn't.

Prepare a fully comprehensive written evidence file of everythign she did/didn't do during her stay.

So sad to have to do this, but I would do it asap as things are fresh in your mind.

Good luck with sorting this out!

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