Dealing with sick leave - WwYD

[loueytbg]

This is a bit complicated, so bear with me...

Nanny has had a lot of time off sick - she seems to come down with everything going, swine flu, all vomiting bugs etc. We have been very accommodating - although I had to take some time off unpaid to cover when it just got too difficult to take holiday etc. We have not docked her pay.

She has been on a waiting list for an op on her foot and got a call today to say she has a date for it. She will be out of action for 8 weeks, meaning we will have to get a temp nanny or try and find a childminder to cover the period. I don't think it has even crossed her mind that we can't afford to pay her and a temp and that we are going to have to put her on SSP.

The complication is that I'm PG and she doesn't yet know. She will be out of a job by the end of September because we can't afford to pay her whilst I am on maternity leave.

I don't really know how to handle all this. I know I can't say she can't have the op but given she will be out of a job in September I'm wondering if there is any way to suggest she might want to try and postpone it until then? DH wants to get rid of her when she goes off for the op and just get someone to cover until I am on maternity leave.

Any advice welcomed - I am probably going to tell her about the PG tomorrow and I'm not looking forward to it. I hate difficult situations....

I don't think you can suggest when she has her op. However, given the amount of sick leave you have paid to date, it is reasonable to say that because you will have to also pay for a replacement, that you can only pay SSP (obviously dependent on what your contract says - what does your contract say?)

Exactly how much sick leave has your nanny had? Is it time that you should be issuing a warning in relation to her absences?

I think you should have the conversation about sick pay separately from (and before) any discussion about redundancy - it will only muddy the waters.

Congratulations on your pregnancy!

So you will making her redundant towards the end of September. If she's worked for you for 2 years or more, then she will be entitled to redundancy pay. Redundancy

Giving some pre-warning that redundancy may be on the cards I feel is a good idea. So telling her that you are pregnant and that you thus may need to make her redundant in September, as your childcare needs will be changing.

Why would she be thinking that if she took 8 weeks off work, she would still be paid? Could you have a chat with her about the amount of leave she has had over the past year and say that whilst it's great that she now has a date for the op, you do wish to make it clear that she will need to use any remaining annual leave for that (I think that's permitable and she would get more than SSP) and take the rest as SSP.

Why is it a redundancy situation nannynick? As long as the contract is comprehensive, dismissing a nanny because you genuinely have no need for her any more, as in this situation, is classed as a fair reason for dismissal. It is NOT making her redundant and the OP needs to be careful not to use that word thus giving the nanny ideas that she may be entitled to redundancy pay. The employer just needs to ensure that s/he gives the correct notice period.

You do need to be careful not to confuse the two issues though OP. You could tell her now that you will be giving her notice in September as you will no longer need a nanny, but it would not be fair or legal to link her dismissal to her taking time off for medical reasons. Hopefully you can negotiate a solution that works for both of you, but if you think she's already expecting full pay while off she might be the kind of person to try and convince herself she has an unlawful dismissal case to get some money from you.

I think your DH's suggestion is a good one. If she's going to be out of a job anyhow and the surgery is not urgent, she may as well postpone it so she can earn now and save for when she is job hunting.

I am a nanny and that's exactly what I would do!

Yearofthecat - she has had at least 3 weeks of this year (I should have kept count...) 2 weeks of this were swine flu and the rest have been various vomiting bugs/tonsillitis. This is on top of a couple of days where she couldn't get in because of snow and various Drs and hospital appointments which I've had to cover. She has also tried to take a day off to stay at home with her sick cat. Today, just to put the icing on the cake her fish tank sprung a leak and she was late in because she was attempting to clean up the mess. Whilst I am sympathetic to animal lovers, and I'm sure she is not faking her illnesses, it is wearing very thin....

Her contract states 2 weeks paid sick leave and then SSP so we have been more than generous.

Nannynick - she will have been with us for more than 2 years so she may well be entitled to redundancy pay (2 weeks I think). I am confused though as to whether she would definitely be entitled to it as psandqs said, but I've had a look at the link you posted and I think she will be, and if so we will of course pay it.

psandqs - I don't think she is the sort of person to go for unfair dismissal, I just think she hasn't even thought about SSP.

DH and had a argument chat about it last night. He is less than sympathetic. He thinks we should make her redundant when she goes off for her op. His point is that she will be off work for 8 weeks (when we will have to get someone else in) and then back for a matter of 6-8 weeks before she will be made redundant. However, I am concerned about the legal implications of this because we will be replacing her with a temp to cover the time until I go off on maternity leave. Therefore the job is not exactly redundant yet.

The second option is to give her the choice of when she takes redundancy. If she takes it when she has the op (end of May), she can take her remaining holiday (being generous and giving her 2.5 weeks which is what she is entitled to up until the end of September) and her redundancy pay. ie she will be paid for 4.5 weeks of the time she is out of action.

If she takes redundancy in September, then she will have to go on SSP for the majority of the 8 weeks she is off (she can take some or all of the 2.5 weeks holiday she is owed but 3 days of SSP are not paid). Then she would get her redundancy pay at the end of September. I think financially she would be worse off with this option because she would be getting very little pay for at least 5.5 weeks (and longer if she is unable to come back after 8 weeks). [I was actually shocked at how little SSP is]

I asked her if the hospital had offered her any other dates and they've told her the next slot is towards the end of the year so she could be in for a long wait if she doesn't take this slot. I think this slot is a cancellation. I'm not going to raise it today because I think we are still not clear what to do and I don't want to have a conversation with her which could backfire.

Any further comments/suggestions re handling this would be welcome. I'm tearing my hair out..

Don't have any useful advice but just wanted to say that I think you are being very thoughtful and fair about the way you are approaching this.

Hope it all goes well.

i don't have anything constructive to say either, just wanted to send you my sympathies. You're sounding amazingly sane and fair.

you are being very fair - and congrats btw

i would first tell nanny that the time off she has will be ssp as she has already used and been paid for 2weeks as stated in the contract

i would then mention to her that you are preg and that you will be making her redundant in sept and that she has 2 choices, you make her redundant now and then she is paid as you explianed in your post and then she can look for a new job starting august

or that she is off work for 8weeks on ss, and then back for 2 mths then unemployed

i know which one i would take - 1st option

btw how long must an employer legally hold open a job if ill - nick or flowery do you know?

a month off is annoying/inconvienant etc - let alone 2mths+

so if a nanny broke her leg/had op etc and couldnt work how long is her job safe?

If the job is no longer available (i.e. your childcare needs have changed) and she is let go because of that fact, that is redundancy. But, you can not then hire another person to do the same job with a certain amount of time (2 years springs to mind but Im not certain so best to look it up and not take my word). You could, however, hire a childminder for that time as that is a different job. You could even hire an au pair and a childminder for that time, and possibly keep the au pair through maternity leave if that is affordable. If you then hire a nanny after your maternity leave, you will need to offer the position to old nanny (if within 2 years of redundancy -- again, not sure about the 2 years).

You can't make her redundant now if you still require childcare. You can only make her redundant when you genuinely have no further requirement for childcare (ie Sept) and then you will need to pay her redundancy pay if she has had 2 years or more continous service. I applaud the fact you are trying to be fair but you are muddying the waters with someone quite franky who seems to have taken the p* and I would handle her carefully. I would inform her any sick leave from now on will be paid at SSP or from her annual holiday entitelement at her request. I would inform her you are pregnant and that in September or the exact date you will be terminating her employment due to redundancy. I would NOT start debating with her when she should or should not have her operation. You are her employer not her MUM and she should be able to work out whats best for her. If you donlt spell out the SSP then I would expect she will take even more time off and expect you to pay. I would document any conversations I have with her in the form of a follow uo letter. Good luck

"You can't make her redundant now if you still require childcare."

Actually, you can't make her redundant if you still require her particular job description, which is a nanny. You are entitled to make her redundant and then use other types of childcare (childminder, nursery, au pair, etc.).

Also, if you get an aupair who you can afford to keep through maternity leave, you will have more stability for your older children. A new baby is a big even, and the departure of a the nanny at the same time is a lot for small children to experience all at once.

Strix. Re Childcare. You are correct. I noticed my error after I posted.

Strix - just so I have this right - are you saying that I could make her redundant at the end of May if I find a childminder to cover childcare, but not if I find a temp nanny?

I hadn't realised there was a 2 year limit on rehiring. I will take 1 year mat leave and then go back to work. What happens re childcare then we don't yet know - we might hire another nanny or use a childminders (DS1 and 2 will be starting school then). I really don't want to have offer her her old job back again because both DH and I think we need a fresh start (partly because of her history with illnesses).

Yes, Louey, that is exactly what I am saying.

You are making her redundant because there is no longer a position for a nanny. A childminder is a service you pay for and not an employee. So, nothing to do with the redundancy.

If yu make a person redundant you cannot hire another person for that particular position. But, there is no reason you can't hire someone different for a different position which requires a different set of skills.

If I no longer need an accountant but do suddenly need an engineer, I obviously can't give the engineering job to the accountant because she won't be a qualified engineer.

Thanks Strix - that is very helpful, not least because we could afford to keep them at a childminder for a couple of days whilst I was on mat leave because it is much cheaper.

You are wellcome.

Jules, sorry about my abrupt correction earlier. Must work on being more British.

Probably worth having a chat with ACAS with regard to if the situation is redundancy and what constraints there may be if your requirements change in the future.

Changing to using a nursery would also be possible, as again it's different to a nanny. So short term you could use Childminder, Nursery or combination of the two. After school club if appropriate.

Probably worth having a chat with ACAS with regard to if the situation is redundancy and what constraints there may be if your requirements change in the future.

Changing to using a nursery would also be possible, as again it's different to a nanny. So short term you could use Childminder, Nursery or combination of the two. After school club if appropriate.

I'm pretty sure it's not two years before you can rehire. I actually thought it was as little as three months!!

Hi

its 6 months...just been through all this with my dad and myself.
you cant hire a replacement to carry out the same role/hrs etc but you can re structure the position re hrs, duties etc if it then becomes a different role to the one she was previously employed to do..however, you do have an obligation to offer the changed role to her, should you want to take a temp on etc (Im sure thats right!)

good luck!

btw how long must an employer legally hold open a job if ill - nick or flowery do you know?

That's not how it works Blondes. If someone is unable to do their job because they are sick, this may be grounds for dismissal. But if the employer does not treat them fairly, the dismissal may be unfair. More information here.

I think within 3 months you have the right to bring a claim for unfair dismissal under the guise of redundancy and your employer should offer your the position if it becomes avaialable within a specified period.

You do have to offer her alternative employment if it exists e.g. mother's help role, part-time work - a live out domestic childcarer basically. You would be able to have someone live in if you could prove it was a requirement (pay falls below NMW for example or you need someone living in). She is also entitled to reasonable time off for interviews and training. This is what people often do when getting rid of a FT nanny for an afterschool one.

You have to be very careful with redundancy because if there's any other factor than the role genuinely not existing any more it can be classed as unfair dismissal.

I suspect the 2 years springs to mind because it's the length of service BEFORE redundancy to qualify for SPR etc.

Thank you all. I think I will phone ACAS NannyNick and just sound them out. The best thing may be to offer her the choice of when she goes and see what happens, but I am leaning towards making her redundant at the end of May and putting DS's into a childminders then. I don't want to do that if there is a potential for an unfair dismissal claim though, so will see what ACAS say.

I am going to wait to tell her now until after my nuchal scan which is only 10 days away. I wasn't going to tell her about the pg until then anyway but the conversation about the operation has brought it all to a head.

Any more pearls of wisdom would be grateful. I will keep you updated about what happens...

thanks mr a, tho i still dont see a time scale , tech you could be ill every few months and need to take time off and nothing the employer can do - is that right?