Pregnant nanny - unfair dismissal

[Julesm79]

Hi,
I'd love some legal advice from anyone capable.
I am writing about a nanny friend ( I am also a nanny)

My friend worked for a family from Dec 2009 - until Fab 2011. In November 2010 she found out she was pregnant (unplanned) and informed them immediatley (about 6/8 weeks gone) They were very supportive.

Prior to becoming pregnant they had decided to cut her days from 4, down to 2. The mum had cut her own working days, and although my friend wasn't pleased about this, she accepted it without any confrontation, and started to look for another 2 days work elsewhere to make it up.

When she returned to work after christmas, teh family told her they would no longer need her, as it was not financially viable for them to have a nanny for 2 days a week, and they would be finding a different sort of childcare.

They gave her 6 weeks notice.

She finished working for them 2 weeks ago, and they have now employed a new nanny. She is working the same 2 days, but increased hours ( by 45 mins extra each day) The nanny is qualified and has 20 years experience (therefore I can't believe she is any cheaper than my friend)

My friend has now had to look for a new job, whilst pregnant, therefore not entitled to SMP (although she can claim MA)and all very stressful

Does this sound like a good case for unfair discrimination, and how should she begin to deal with it. Directly with the family to start with? or straight to tribunal?

Many thanks

AFAIK under a year service you can't go to tribunal for unfair dismissal.

She worked for over a year. December 2009 until she was given notice in january 2011

You can claim unfair dismissal from day one if it's for a discriminatory reason, and obviously pregnancy would be one of those reasons.

If they've sacked her and reemployed someone else within a few weeks of discovering her pregnancy, she may well have a very good case, yes. Does she have legal cover with insurance at all? Basically she needs to appeal the dismissal first of all. A trip to the CAB, phone call to ACAS or a free consultation with an employment lawyer are all options.

x-posts, yes of course it was more than a year anyway.

Dismissal for reasons connected to pregnancy is different - you don't need a Year's service to claim unfair dismissal for a handful of specific reasons and this is one of them.

Tell your friend to get some real life advice AS SOON AS POSSIBLE - there are strict and short time limits for making a claim to anEmployment Tribunal.

She may want to check if she has any legal cover under her home insurance policy. Also the CAB is a good place to try, and ACAS is an essential contact.

HTH

On the basis of what you say, yes, she potentially has a case for unfair dismissal and sex discrimination (it doesn't matter that her replacement is female. The issue is that they replaced her because she was pregnant).

I read the first section of your post thinking 'gosh, that's tough, but it's not illegal'. The family were perfectly entitled to decide not to use a nanny, even though the timing was bad for your friend. But they cannot pretend that they are making her redundant and then hire a replacement for the exact same job.

I would recommend seeing if she can get some direct advice. ACAS have a helpline, although it can be a bit hit and miss. The CAB can be hit and miss too. The best thing is to check her household insurance in case she has legal protection cover in her policy, in which case they may fund a lawyer to act for her. Or, if she can find one, to look for someone who does no win/no fee work (there aren't that many good ones in employment to be honest, so it can be a bit of a hunt).

Once she has some advice, she can decide whether to try and negotiate with the family or go straight to filing a claim and negotiating then.

She has only three months to claim from the dismissal, so she needs to act fast.

Hope that helps.

I would say go straight to her specialist nanny insurance. It will cover her even if it's since expired as long as it was in force during the period she's basing the claim on AFAIK. Otherwise ACAS or the CAB.

Very for her.

Ah, cross posted with lots of people!

Thats great, many thanks. We will make an appointment at CAB this week. I doubt very much she has any house insurance, but will get her to check asap.

Sorry another question, could she qualify for legal aid?

try the acas helpline too - my dh found them helpful when he got laid off here

No, unfortunately there is no legal aid for employment cases.

I am sure she has a case - I think these people might be a good starting point - CAB can be v difficult to appoitment and as people say ACAC bit hit and miss

www.workingfamilies.org.uk

Our confidential helpline for parents and carers gives advice on employment rights and benefits. The service is open to parents, carers and their advisers, you don't have to be a member! The helpline is run by our team of solicitors and advisers and has a Quality Mark from Community Legal Services. Call free on 0800 013 0313, text 07800 00 4722 or e-mail [email protected]

Ime if it's a discrImination case ACAS will refer to Equalities and Human Rights Commission who are patchy at best and as much use as a chocolate teapot in most cases

Realistically she's not going to get her job back (imagine the working relationship after all this?!) but she could potentially get a financial settlement. I would put in a claim to an employment tribunal (forms and guidance can be found online) and then negotiate with employer to get a settlement. But only if she's confident and wants to do this. I also accept that I am comfortable completing forms and articulating myself and that's not a skill we all have and so might be worth looking at no-win no-fee options in that case.

But she really has nothing to lose by perusing this unless she finds it all too upsetting/stressful in which case, wrong as her treatment may have been, walking away might be the right thing for her.

Forgot to say as well as the excellent Working Families helpline there is an NCT legal advice line provided by Russell Jones & Walker solicitors. It used to be option 5 on the enquiries line www.nct.org.uk and is open to all expectant/new parents.

Advice lines will all say the same as is on here. If she has legal insurance cover then she needs to start a clai, and speak tyo a solicitor. If not, I would advise her to send a letter by recorded delivery saying something along the lines of:

I understand that you recently terminated my employment on the grounds of redundancy. (Possibly add this: However I understand that I should have been entitled to a redundancy payment that has not been forthcoming - I would like you to clarify when I am to expect this)

Additionally, it has come to my attention that you have immediately employed another nanny to perform the same role and duties which I have been performing, and therefore it appears that the role itself was not made redundant and that I have been unfairly dismissed.

Given that you have dismissed me during my pregnancy and have subsequently hired another nanny to perform my duties, I have been advised that I have strong grounds to claim sex discrimination under the Equality Act 2010.

Please can you respond in writing explaining how you propose to reinstate me or to compensate me for my wrongful and unfair dismissal. Given that I am likely to struggle to find alternative work because of my pregnancy the financial costs to me of your illegal actions are extremely high and I have found it very upsetting that you have decided to replace me solely on the grounds of my pregnancy, despite the trust that I thought had built up between us, and in complete disregard of your legal obligations as my employer.

I have been advised to point out to you that in addition to the above, I am legally protected against unfair references and that due to the nature of my role as a childcarer, you are legally obliged to provide full references when requested. I would be grateful if you can confirm that you are aware of your obligations in this regard and I would ask you to enclose a copy of your employment reference when you respond to this letter.