Redundancy for nanny without a contract.

[knakered]

WE are making our nanny redundant. I prepared a draft contract for her to comment on and sign when she joine dus last April - it hasnt come back. what are standard redundancy terms and conditions - what are my obligations as an employer both financial and in terms of process wrt to terminating her employment

If she has been employed for less than a year, she is not entitled to any redundancy payments. You should give her the agreed notice period and then ensure that she is paid any untaken holiday on top of her normal wages.

So long as she started in April she has no entitlements to redundancy monies (these kick in after 2 years, and unfair dismissal tests normally apply after 1 year - although stuff like whistleblowing can mean exceptions to this). You do however need to pay for her notice period. Even if she didn't send back the draft contract, the terms of the contract will be assumed to be 'implied'.

I have read your other posts, and you need to be confident that you will not be needing a nanny in the future because otherwise you might be in hot water if you don't offer her the job back. There is also an outside chance that she might go to the lawyers claiming you are sacking her by the back door, and therefore you need to pay her to go away (again no real grounds), but I think she will hopefully see the value of having a neutral reference to move on with (if you are happy to give her one), as opposed to deteriorating things further.

Given that she has been with you for less than a year, I might myself be inclined to dismiss her for gross misconduct (for shouting and inappropriate discipline measures ref your 18mth old), rather than make her redundant. But flowery or someone more expert should advise you here. The reason I say this is because you have a legal obligation to be fair to both sides if you are asked to provide a reference in the future and you may find yourself in a difficult position if you are asked direct questions about behaviours or suchlike. Childcare is one of the few professions where you have an obligation to provide full references when asked rather than being able to give just starting/leaving dates and so on. So, if you make her redundant without disclosing the problems you have with her and you then point out issues that you had with her in a reference, you might find yourself in very hot water. Of course if you give a neutral reference when you feel you should be more honest, you are at risk of (a) feeling a bit grubby about it (highly likely) and (b) being subject to legal action from the person who subsequently employs her (although that is TBH extremely remote).

The fact that she has no contract is irrelevant.

I also think you've left it too late to rely on the less-than-one-year-no-unfair-dismissal-rights thing, if she'll have a year service in a couple of weeks.

She doesn't get any redundancy money with less than 2 years service and with 1 employee you don't need to consult either but from what squiffy says there might be more to it... Is it definitely a redundancy situation - you don't need a nanny any more, or just a way to get rid of her?

I will need a nanny in the next few years but only max 3 days/week she is 5 and will not consider 3. I do want rid of her for disciplinary reasons but am uncomfortable goinmg down this route. Do I only have 2 options sacking (is this giving notice?) or redundant??

this sounds complicated knakered and I'm not really comfortable advising you without knowing more. Are you able to tell me the following?

What was her start date?
What did she do that made you want to get rid of her?
When was this incident/s?
What did you do about it at the time?
Have you formally offered her 3 days a week on the basis that that is your requirement going forward and has she declined it, in other words she is aware that declining 3 days means she is redundant?

here flowery.

What was her start date? 12.4.07
What did she do that made you want to get rid of her? see link
When was this incident/s? see link
What did you do about it at the time? shocked procrastinated ... discussed the baby incident she apologies I have said that I am feeling hard to get over this...the shouting was a debate where she justified her approach until I demanded she not shout at my children.
Have you formally offered her 3 days a week on the basis that that is your requirement going forward and has she declined it, in other words she is aware that declining 3 days means she is redundant? We spoke about it earlier in the year she was not interested - I asked her agian recently she has not responded - but in reality the confidence has gone....
WHAT IS THE DIFF IN NOTICE and SACKING ARE THEY THE SAME??...can you only terminate either due to redundant role or gross misconduct

knakered I'm hoping you accidentally hit the caps lock, I don't take kindly to being shouted at when giving free professional advice.

I have read the other thread. You couldn't dismiss her for gross misconduct. Gross misconduct is where someone does something so bad that it is impossible for the employment contract to continue. You don't give specific dates but mention that these incidents and concerns have taken place during the time since Christmas, you have continued to allow her to care for your children and during one specific incident, you watched without comment.

I am not saying her actions wouldn't be serious enough to be gross misconduct, but given your action or lack of action following them, it would not be reasonable to suddenly decide now that they were grounds for dismissal on the basis of gross misconduct. If you did that and I were your nanny I'd be appealing it straight away.

During the first year of employment your nanny has virtually no rights to claim unfair dismissal so essentially you can dismiss her whenever you like, which means that the fact that this couldn't really be gross misconduct might not matter. However you have left it very very late to do this.

Can I ask 2 questions. Is there a clause in the contract saying that you can pay her in lieu of notice? And what is her notice period? Your best bet may be to dismiss her immediately and try and squeeze it in under the year.

You could make her redundant, consultation isn't required as such for just one person but you'd have to follow an appropriate procedure, give her opportunity to appeal etc, and it would have to be a genuine redundancy. If you genuinely are reducing your requirements to three days a week, you'd have to offer her that as part of the process.

Hi FBB -- apologies for the "shouting"...didnt realise that this was what I was doing!!

Yes her contract is 1 month notice, she started with me 12/4/07. Pay in lieu of notice ...not sure what that means?...does that mean that I can pay her her months notice and request that she doesnt come to work?...dont thikn that is in there but not sure why she would refuse this option.

What is the process I need to go through to to dismiss her, please?

Hi FBB -- apologies for the "shouting"...didnt realise that this was what I was doing!!

Yes her contract is 1 month notice, she started with me 12/4/07. Pay in lieu of notice ...not sure what that means?...does that mean that I can pay her her months notice and request that she doesnt come to work?...dont thikn that is in there but not sure why she would refuse this option.

What is the process I need to go through to to dismiss her, please?

knakered pay in lieu of notice means you dismiss someone with effect immediately, and instead of requiring them to work their notice, you end the employment then and there and pay them a sum to compensate for the loss they have made as a result of not being given the opportunity to work their notice.

It's easier to do if you have that clause in your contract but you can still do it without. The reason you would need to do this rather than just give her her month's notice is because if you just terminate her employment with a month's notice now, her notice period would take her over a year's employment, and she would be able to claim unfair dismissal.

Your options are:

1. Dismiss her immediately, make it very clear the last day of her employment is today, and pay her one month's salary in lieu of notice. Put this in writing, again making it very clear her last day of employment is today and that you are paying her a month's salary in lieu of notice.

2. Make her redundant, it's not clear to me that this is a genuine redundancy, so that's a bit risky.

3. Discipline her, give her a written warning. You wouldn't be able to dismiss her for gross misconduct because of the reasons I mention above, but you could put her on a final written warning and state that any further unacceptable behaviour in the next 6 months is likely to result in dismissal. If she then steps one foot out of line during that time, you should be able to dismiss her without problems.

The reason it's so complicated is because to be honest you've left it very late, you've not acted when these things have happened and you've left it very late to be able to just dismiss her with no legal risks, because she's got almost a year's service.

If you choose option 1, it's very important you do it as I've said, making it clear her employment has ended immediately, and that you are paying in lieu of notice, you should meet with her, state those things and give her a letter saying that as well. This option isn't without legal risk as it's so late, but it gets rid of the problem straight away. I don't know whether she is the type to seek legal advice, she may do and may challenge it. I think you'd be ok but it may be a bit of hassle.

If you choose option 2, you'll have to go through a process, meeting with her, stating that you no longer require a full time nanny, you are reducing your requirements to 3 days a week, offer her that formally as an option or redundancy, give her a chance to go away and think about it, and respond to you, if she says no, you need to pay her one month's notice and put in a letter that she is redundant. You could keep her for the duration of her notice period with this option if you want to.

If you choose option 3, that's probably your safest legal option but would involve keeping her at least for a while, although she would have to improve immediately.

I apologise for this being complicated, as I've said, unfortunately the timings and delays have made it very difficult.