Nanny in breach of contract

[Lila07]

I got a nanny from an agency, which I have paid around 400 pounds for, just to sign the contract. The contract was given to the nanny, who agreed to become my employeer, be registered in the anny payroll and submit an voluntary ofsted registration whithin two weeks of the job starting. Shortly after taking the role, the nanny informed me that she would prefer to do her taxes at the end of the year, I said ok as long as the Ofsted reg was still going ahead, which she agreed. After two or three weeks, I started asking her about returnng the filled for so I could send to Ofsted, and pay for it myself. She then started making excuses, about having to talk to her dad who was an accountant, but never really got to talk to him. I then preceeded to tell her she had to make up her mind, as it states in the contract that Ofsted reg was a requirement, and she then pointed out that she needed to work as my employee nd that it was too much work, and printed and edited out a series of notes, (while looking after my seven year old) from the HMRC website, where it states that it is a serious offence to not submit your taxes, and that there was a difference between self employed and employee (yes I know, I work for them!), and that she did not know anything about what was in the contract as she worked from 8am to 10 pm, and had not had time (surely she must have researched, before accepting the job!).

After several sarcastic notes, back and foward from her to me, and then between us, she then decided to give me notice, as she felt she ws working too many hours, and felt too tired. In her last week, she managed to get a button from my oven, all the way in, and then called my neighbour, who then forced and chipped the 8 months old oven, trying to open the top (it has screws!). I fixed the button and left her a note, saying that if there was a problem with the oven, she should leave it, and should not be caling anyone to fix it, if they have no knowledge of fixing ovens, and that I wasnt very happy about it. Also I found myself cleaning the kitchen floor at 10 in the night as it was black! Middle of the week, I get home and find her in a huff,leaving the living room as I get in, and asking her how my son was and got a @fine!@ as an answer! Told her again about theo ven and she started to scream, saying she did not touch the oven, and that the neighbour was called because she was afraid the house would go on fire, and that next time she would let the house go on fire! Left in a huff, and slammed the door, ithen asked her for the keys, wich were trowed at me, and then ofcourse I finally lost my temper and told her to leave (not exactly in those words!) as she was still arguing as she was walking away! So my first experience with a nanny has been not very good, and Im dreading getting a second one now, afraid of having the same issues! Anyway, is she not in breach of the contract? The agency despite being paid on time, does not seem very interested in helping me out, and told me I still had to pay her one week notice, despite being left without anyone to cover for her,and I still have to pay someone else for the two days as she is not coming back. I feel compltely stressed out with this experince!

Your post isn't easy to understand but it seems t basically boil down to her handing in her notice, then while she was serving her notice you had a row and told her to go immediately, and not work the rest of her notice. Is that right?

If she was willing and able to work her notice and it was your decision that you would rather she didn't, then yes you should pay her whatever was remaining of her notice period and chalk it up to experience.

does she work 8am - 10pm every day?

Thanks flowery, its more an outburst than a post really! I indeed paid her the week's notice as stated in the contract, despite having to pay again for someone to cover for the rest of the week. But is she not in breach of the contract by 1. not agreeing to be registered as an employee and 2. by not going ahead with the Ofsted reg as it was a requirement in the contract? And the oven, was ow let cracked, wich anulates any warranty, if it get broken, as its quite visible the cracks on both sides, from someone trying to open it with a knife?

She has a part time job somewhere in the city and worked for me, from 6pm to 10pm, kylesmybaby.

Do you just work a couple of days a week?

She's not working mon-fri is she ? 70 hours?

Monday to friday.

Thats Monday to Friday, from 18 to 22.

So she does 20 hours a week for you.

It sounds like you told her not to work her notice - which means you still need to pay her - sorry if its not what you wanted to hear, she sounds a right grumpy cow.

Even if she was in breach of contract it doesn't matter now. There isn't anything you can do.

But rant away :)

Yes what Laurie said. She may have technically breached the contract with the Ofsted thing but she's left now, what difference does it make?

It makes a difference, as Im I have to pay someone extra, got a chipped oven and have lost 400 pounds, thats the difference! And dreading to get someone else.:(

Thanks flowery, I feel a bit better. Its good to get this out of my system, it has been some very stressing three weeks, mixed with training at work, and fitting in in a much larger company and company culture, than i had before. Being a single parent, and being squeeezed by the cuts, while trying to be independent from state handouts its quite hard work!

In addition to what's been said can I suggest talking to a nanny rather than notes? Much easier to sort stuff out and stop it escalating.

You don't need her permission to register her as an employee. You register with HMRC as an employer and then give the details of who you are employing and pay the tax and NI quarterly. If you're aready using a payroll agency this is easy and if she won't give details you pay tax and NI at emergency rate. This may make a difference to her net pay so a letter explaining the difference would need to be issued and explained as that could be different to the agreed contract - but it would be a change caused by her and would be rectified upon production of a p45 or p46 from the employee.

Yes I agree, but I wasnt going to register her, without her saying so. After signing the contract she indicated that she wanted to do her own taxes at the end of the year, and I said ok as long as the Ofsted registration was still going ahead. Only when I pushed for it, she started talking about chilcare vouchers, and how they came out of my wages, which had nothing to do with Ofsted registration, and despite telling her that it was for me to get help paying her, and explaining how it worked, she still insisted in asking one of her friends, completely dismissing my word, and then refering again to the contract (she then remembered about the contact), saying how she had to be registered as my employee, the cost (which I already knew), and that it seemed a lot of work! YES but you agreed to it! Anyway the notes, started because when I would get home, she would leave notes, in response to my notes and would not talk to me. I then in a temper, writte and the re writte them, when calmer, and not trying to be equally sarcastic and patronizing. To be honest every time we talked, I would just get irritated by her attitude, so preferred the notes, which looking back now, was not a good idea. Thanks lowfolate!

I think that thing that broke the camels back was that, I told her she had to make a choice between following the contract, or drafting another contract with her as self employed, duities and responsabilities, holidays and responsability for reinbursing any fees as a result of revenue and customs coming after me, after I failed to register her as an employee, and failing to pay her taxes and ni! After that I got the notice, while she decided to write on the school's record book without having a word with me at all about it! Im glad she is gonne to be honest, the spray has worked!

You could sue her for breach of contract. Potentially! Would probably cost you more and imo not worth it.

Why did you 'tell her again about the oven'? Surely you'd already told her.

I know, just really upset at the loss of 400 pounds, to the agency who now seems to be taking her side refering to the contract for paying a whole weeks notice, ang ignoring the fact that she has neglected the contract and has been fobbing me for a month. Anyhoo, rant is over, money lost when i could have bought myself new clothes for the new job, and had a nice haircut as opposed to do it myself at home, to save money for the agency! The wonders of childcare these days! Thanks ladies for your time!

Because i didnt see the cracks the day before, and because she was in a huff when i got in the house, walking out of the living room and saying just fine, when i asked her about my son. Didnt even mentioned the black floor i had to scrub the night before, after work.

Honestly put it behind you and move on. She was a bad nanny. The next one probably won't be. Many, many people on MN use great nannies. Incidentally I didn't find mine through an agency. I asked around for recommendations and went with a share in the end.

Regarding the employee situation it is the employer's legal obligation to register an employee. What you've said about the working relationship and duties she would never have been able to be self-employed - regardless of what she wants.

Next time set clear boundaries, talk things through and have a probationary period in the contract. There's always some give and take but you have to have some non-negotiables and clearly state them.

Thanks lowfolate, boundaries are definitly something I have to keep in mind, thats what the contracts are for. Just really checking if im not crazy, or being too fussy, and upset about what happened. Already looking for someone, and interviewing a nanny tomorrow, with all my questions ready! Thank you!

Lessons learned should be:

1. It is a part time job, so If the employee has another full time job then you are into an HRMC nightmare whichever way you go. As an employee she can easily end up paying emergency tax and then having huge refund OR tax bill at end of tax year. In such cases I would recommend you use nannytax service (can't believe I've just said that, I have never used them myself). Even then it can be a right old tax mess (I say that as someone who runs my own business with around 40 staff, by the way and have been through the tax mill on stuff like this quite often)

2. Some part-time nannies can be self-employed (depends on level of flexibility in contractual hours and a variety of other things) but in future you need to insist they are employed, not self-employed. Exception would be if you find a nanny dong a nanny-share who can show you paperwork to confirm HMRC accept her status as S-E.

3. The oven thing - these things happen. As an employee it is not her responsibility, it is one of the risks of having employees, and you need to accept that stuff like this WILL happen. Cars dented, silk shirts put in hot wash, etc. Maddening, but you need to accept the occasional bit of damage. Two things to remember for next time: 1 - Nanny Insurance, and 2 -contractual clause for negligence (stating that losses caused by clear negligence must be covered by nanny). Saying all of that I think you are wrong about the Oven. She acted pretty responsibly IMO by trying to take action to prevent what she perceived to be a fire risk. The fact that it turned out wrong is really unfortunate, but I don't think people would necessarily agree that she was negligent here. TBH I would be quite impressed that she had gone for help - it would make me much more confident to know that she would take prompt action in a real emergency (something I always ask myself when hiring nannies/APs)

4. When dealing with agencies you need to be absolutely immoveable in terms of non-negotiable requirements. Otherwise you will always get people who fall short of expectation and that's not fair on either party. If the agency can get you dealt with quickly by fudging stuff to seal the deal then that is a sore temptation for most agencies, so just be specific on this stuff. If you needed ofsted for childcare vouchers don't take anyone on unless they already have it. End of. But I guess you know that now.

5. I think you would be extremely lucky to strike gold first time given your requirements for evening care only. You may go through 2 or 3 nannies before you gel with the right one. We've all been there and it's a pain but if you accept high probability that it will take a while to find the right person it will help you keep sane.

6. Would an au pair be more suitable for your needs? There is a big risk that non-live-in people will do the job on top of a day job so will maybe be not quite as motivated/energised.

7. Breach of contract: yes, there's elements there, but IMO only regarding the delay re ofsted. The claim therefore might be limited to just the tax benefit of childcare vouchers over the period in qn (ie not much). Potentially you could also claim for costs of hiring new nanny (but agency will probably replace for discount or free anyway) and additional cost (over and above normal salary levels) for emergency childcare whilst you find a new nanny. IE total potential claim probably not enough to counter risk that you might not win and costs of court.

Aside form the legal viewpoint, you might want to re-post your OP in childminders, nannies section of MN to get the alternative viewpoint from other nannies (as well as parents) - it might give you food for thought and ideas for next time. Good luck in hunt for new nanny.

The agency telling you you need to pay her the rest of her notice period isn't taking her side, it's giving you good advice.

Registering her as an employee is your responsibility and the fact that she didn't want to do that isn't a breach of contract on her part.

Technically not handing the form in dead on time might be a breach of contract but as she left very shortly afterwards your actual loss as a result will be miniscule if anything.

The fact that she didn't complete the form in time makes no difference to the fee arrangement you have with the agency, unless your contract with the agency contains a clause saying that in the event of any breach of contract by the nanny you get a full refund of the fee. Which I doubt.

Thanks stillsquiffy for your post, really helpful and honest, thats why I like tocome to forums, so I can get different opinions and angles on an issue, in this case with nannies! Yes the oven was an accident, but to be honest, if I had the time to sit down with her and go with a fine comb trought everything, thse stuff would have been avoided. So learned that stressed+desperate+in a rush decisions over childcare dont work! Today I sat down with a potential nanny, and took an hour to ask her everything I wanted, and gave her the oppurtunity to ask some questions as well, which immediatly not only creates a bond between us, but also I now know what she expects from the job, and will help my decision in choosing the right one. Im an amator, but Im learning the ropes now, thanks for your time, ladies! :)

How long was she with you? If she gave notice fairly quickly, would you be liable for a refund from the agency?