Please help? New part-time Nanny pregnant

[MPP]

Hi
i wonder if anybody can help me?
I went back to work full time 14 weeks ago and my son goes 3 days a week to Nursery and the other 2 days stays at home with a nanny and her 2 year old daughter (1 year younger than my son).
The nanny announced last week (13 weeks into work) that she is 6 weeks pregnant and baby is due in January 2011.
I am very happy for her but very sad with the prospect of losing her as she has been amazing and life saving as I have a demanding job.
I decided that my son should go to nursery full time while she is on mat leave instead of finding another nanny. However the nursery follows term periods and will only have vacancies in Sept 10 or April 2011. In order for him to start in Sept, I would have to get into an agreement with the nanny to break the employment contract or ask her to start mat leave much earlier than normal.
I am worried that terminating an employment contract with a pregnant women is ilegal - does anybody know?
It would be great to hear your comments or advice.
Many thanks
MPP

You can't end the contract early because she is pregnant I'm afraid, and you can't make her start her maternity leave early. You could ask her when she intends to start maternity leave (earliest is 29 weeks I think) and explain your situation, but it's up to her and she doesn't need to decide yet.

You might find this helpful - Pregnant Employees

yes you can terminate the contract, as long as the reason isn't due to the pregnancy. Trouble in your case is that the reason is associated with the pregnancy, so you need to tread carefully. May well be worth getting some expert advice on the matter (your insurers may provide a free legal advice line). Also try posting in Legal section of Mumsnet, should any nice HR people be able to confirm things.

DWP: SMP Eligibility

SMP Dates Calculator

If you terminate your nannies contract before the qualifying week (week 15 before EWC), then I don't think you pay SMP.

See DWP: SMP Eligibility
"You will not normally qualify for SMP if your employment ends before the qualifying week. This is the 15th week before the week in which your baby is due."

Your current reason for choosing the nursery seems to me to be due to your nanny being pregnant.

You could perhaps choose a different reason, such as financial difficulties (nursery I presume would be cheaper for you).

It is tricky and a bit of a minefield... the dates may be quite important, as if employment is terminated before Week 15 before EWC, then right to SMP would not exist (in my view... do check yourself using the DWP guide with the dates you have been given).

HMRC: SMP Overview
HMRC E15 SMP Helpbook (PDF)

"Your current reason for choosing the nursery seems to me to be due to your nanny being pregnant.

You could perhaps choose a different reason, such as financial difficulties (nursery I presume would be cheaper for you)."

Sack the nanny because she's pregnant then lie about it

That seems like pretty immoral advice nannynick, and I'd hope no woman who has been in the position of being pregnant and working themselves would try to do it.

At the end of E15 there is a dates table which will help calculate when the qualifying week would be and the latest date they would have had to have started working for you. That is, if they are expecting to claim SMP.
Is nanny aware that they may not make the dates for claiming SMP due to only recently having started the job?

Missus - the contract will contain a clause that gives a notice period in it. If that notice period is given and the legitmate reason for giving that notice is NOT connected with the employee being pregnant, then I think it is legal. Though may not be the moral thing to do.

If next week MPP is made redundant, or dismissed from their job... then that I feel would be a valid reason to make the nanny redundant (as the nanny is no longer required). So if something happens to MPP's situation before week 15 EWC, that means a nanny is no longer financially viable, then it MAY (I don't know for sure, thus legal advice should be obtained) be ok to make the nanny redundant under the contract as it stands - thus giving the required notice.

It is automatically unfair dismissal if they are dismissed simply because they are pregnant.

Sounds like MPP wants to find a solution where they can have the same nanny back again... is that right MPP?

In which case it needs to be looked at in terms of if maternity leave could be started in September. Week 15 EWC may not be until the end of September, so if the nanny didn't work that week, then I don't think they would be entitled to SMP.

This from AdviceGuide.org says that the earliest SMP can be obtained is from Week 11 before EWC.

Dismissing a pregnant employee can lead to going to tribunal. A mumsnetter did exactly that see here but lost the case, as "The tribunal was for both unfair dismissal and sex discrimination. Unfortunately it couldnt be proven that my pregnancy was the sole reason for my dismissal so she got away with them both."