Update: CM threatening to take me to court

[Needadvice2018]

Hello,

Having to redo this as last time some details were still visible .

I posted a thread the other day in both legal matters and childminders. Basically my CM has sent me a letter threatening to take me to court over unpaid childcare fees. In her letter she stated that contracted hours and contractual notice are the same thing and therefore I'm liable as I didn't give her 4 weeks term time notice. However, I've interpreted her contract to mean contractual notice must be within 4 weeks regardless of whether or not it's during term time. I also don't believe that contractual notice and contracted hours are the same thing!

Basically, what I'm asking is whether or not I've just misconstrued the terms of the contract or whether they are actually ambiguous.Any advice would be greatly appreciated thanks!

From the section of the contract you have posted there is no definition of 'term time' .

It's difficult to say without seeing the whole document.

Was she contracted to do only term time child care?
Is term time a defined clause anywhere?

Generally speaking any ambiguity in the clause is drawn against the person who drafted it.

So in this case against her. It's called the contra Proferentem rule.

@Blankscreen
Apologies but I can't add any more images as apparently I've already posted too many today

There's no definition of term time on the contract. She's only contracted to look after my LG through term time however she works through out all of the holidays.

She's basically arguing that contracted hours (which does state term time) is the same as contractual notice but as far as I'm aware contracted hours just means the hours she's paid to look after my LG and contractual notice is the legal requirement of notice needed to be given (which here states 4 weeks).

4 weeks is 4 weeks, surely? If she wanted 4 weeks term time notice, she needed to specify that. Is she saying that you had to hold your notice over the summer break and resume it once the break was over?

Whenever I do clubs that operate in term time with my children, the notice period is always "one term's notice" or "one half-term's notice". It's explicitly expressed in terms of school terms. That isn't. I think that is her mistake and she's only just realised it and wants to push on regardless.

Did you give 4 weeks notice - if so I cannot see how that isnt fine

Surely she should have said something to you the day you gave notice??

@Quartz2208

Yes I gave her 6 weeks notice. Forgot to add that part on!

I can see her point. You contracted for term time only. The notice period is there to help her balance her costs. So it needs to be notice of hours she would have worked ie term time bourse. That's what she means by contracted.

What she meant and what she said are two different things.
OP you are in the right.

Contractual notice does not related to contracted hours though. The contractual notice is 4 weeks (contractual notice means: the period of notice required to be given under a term (whether express or implied and, if express, whether oral or in writing) of a contract of employment). She then states 4 weeks which was given.

I think the problem is here she drafted her own contract and genuinely believed she made it so that term time notice would be needed but she hasnt. Most reasonable people would read that as 4 weeks notice. She should as a PP said be saying term and or half term notice

Because presumably if you had known you would have given notice 4 weeks before the end of term.

@NorthernLurker she works all year round though so she would've filled up my daughter's place during the summer holidays.
I would understand if it was explicitly written like that but just adding the word contract in front of something doesn't mean it means the same thing as something else with the word contract in it. They are just parts of a contract.

I would write back showing that bit and stating that as per the contract you have given contractual notice of 4 weeks

I.can see this from.both POV to be honest. If your childminder kept your DD's plave over summer and then got back to being given notice then she is in a bit of a bind because she may not be able to fill her place now the school term has started. Most parents will already have made after-school care arrangements.

However.... this is about contract terms. Contractual notice ... is contractual notice defined in the contract??

i cant see term time mentioned in the contract, and as not explicitly mentioned then i dont think she has a leg to stand on, tell her to fill her boots at the courts

She didn't get back after the summer and find that she's gone, though, did she? The way I read it, she was given 6 weeks notice at the end of last term, that the OP's DD wouldn't return this term, and the CM worked all through the summer months, so could have spent that 6 weeks recruiting a new child to that space.

@ohnothanks
She was given notice in the middle of July. That gave her 6/7 weeks to fill the place.

Contractual notice is defined as being 4 weeks. She's arguing that it should be construed to mean contracted hours (which is term time). However, I interpret contracted hours to be the hours she's paid to look after my child and nothing to do with notice.

I just think it's far too ambiguous to be able to make that leap.

Bit hard to be definitive without seeing the rest of the contract but I’m struggling to see that she has a good case.

Do you have legal cover on your home insurance? If so call that helpline

@EmeraldVillage I'll post the rest of the contact which is relevant tomorrow but unfortunately you're only allowed to post 6 images a day and I'm on the limit!

As for legal cover I'm unsure if home insurance does cover it but however as I live with my parents (who have the policy out in their names) I'm unsure if I'd be able to use it anyway as I'm not the policy holder.

This is under employment law, but its probably the same - contractual notice means notice thats in the contract ie: 4 weeks

uk.practicallaw.thomsonreuters.com/3-200-3142?transitionType=Default&contextData=(sc.Default)&firstPage=true&comp=pluk&bhcp=1

Glossary
Contractual notice period
The period of notice required to be given under a term (whether express or implied and, if express, whether oral or in writing) of a contract of employment. It is possible for the employer and employee to have to give different periods of notice.
Various additional terms may be agreed, such as a requirement that notice be given in writing, or the option that the employer may shorten the notice period by making a payment in lieu of notice. The contractual notice period may be longer than the statutory minimum notice period but may not be shorter. A failure to give the required notice is likely to constitute a breach of contract.

You live at home so presume legal civet would cover you as well .... worth a quick shot

Surely contractual notice means exactly that, though? The notice period prescribed in the contract.

If it's not prscribed then it's a meaningless term. If it is prescribed then it will come down to a) whether you complied or b) whether it is a fair contract term.

Essentially, this is a contract law issue and you need legal advice as other people have said.

She’s wrong.

You gave her the notice (much more than actually) that is in your contract.

You’re correct, contractual notice and contractual hours are different things. Just like black board and black beans.

@ohnothanks

The contractual notice period just states 4 weeks notice must be given. It doesn't actually explicitly state it must be within term time.
However, she's arguing that where contracted hours is written (which states term time followed by a list of the hours she has my LG per week) should be construed to mean that this is what contractual notice means.

I posted it on legal matters as I was hoping that someone with some legal background would be able to give me advice about where I would legally stand.

Ignore. Ignore. Ignore.

The contractual notice period just states 4 weeks notice must be given. It doesn't actually explicitly state it must be within term time.
However, she's arguing that where contracted hours is written (which states term time followed by a list of the hours she has my LG per week) should be construed to mean that this is what contractual notice means.

Contract = the contract

Contracted notice = notice written in the contract
(4 weeks)