Unreasonable Contract/Holiday Pay

[Mummy369]

Hi, My childminder told me she can't look after my daughter from september. I decided to end the contract earlier because she is away for 2 weeks in the Summer, and anyway my husband is home to look after the children. I gave her 6 weeks notice as per the contract, and now she says I have to pay her holiday pay because she is 'owed' it. She says she is entitled to 28 days holiday - my daughter only attends 3 days per week so in effect that would be 9 weeks paid holiday per year. I told the childminder surely she means 4 weeks? But she disagrees. Now, because the CM has only had 7 days so far, she says I have to pay her 21 days. My sums indicate that if I paid her this sum it would be the equivalent of 7 weeks pay and there's only 9 weeks left to the end of the contractual year! With only a week to go until the end of the notice period, I'm really worried about how to broach this with her. She is a very business-like person and can be very unreasonable at times. She sends text messages whilst I'm at work, repeating them 2-3 times until I reply; Also, she charges FULL PAY for all time off - both hers and ours, incl. sick leave and bank holidays. So I have actually paid in full for every week of the contract, and what she is asking for sounds like I have to pay her twice? Has anybody had a similar experience and have any advice for me, please?

what does your contract say? I work part time and if I get 28 days holiday, I don't really get that I get 50% of the 28 days that a full timer works. otherwise I'd be permanently on holiday lol - sounds great but it might hack off everyone else. so no - normally p/t work doesn't equal full time holiday. but check that contract!

it has to be pro-rated. therefore 3/5's of 28 divided by 12mths and then times by the number of full months that you have used her, including the notice period.

what is the contractual year? how much of this have you used?

if I've read this right then she has chosen to work rather than take full paid holiday? in my opinion she has chosen to do that rather than book the holiday. you certainly shouldn't pay her twice (unless there is some clause in the contract you have that outstanding holiday is to be paid, but that sounds ridiculous)

As self employed she shouldn't really get holiday pay but if it's in the contract...

But what she's actually entitled to (if she was employed rather than SE) is 5.6 weeks not 28 days if she's trying to claim the statutory holiday pay...but check your contract and see what it says.

Because she shouldn't be entitled to anything as SE....

You're not her employer so she doesn't have any legal entitlement to paid holiday anyway.

So it all depends on what the contract you signed says. Your thread title mentions 'unreasonable contract', but that doesn't really matter, what matters if whether you are contractually obliged to pay her the money or not.

What does the contract say about how much holiday she can take, rules about taking it and holiday pay in the event of termination?

Holiday is for workers and employees. Therefore a nanny would get holiday (although you are right, it's 28 days and pro rata for part timers) but a childminder wouldn't normally because they are a self employed business person.

Presumably your childminder takes other children? And you pay her a fee (not a salary that you deduct tax from)? These are classic aspects of being self employed.

Leaving aside the strict legal position, does the contract give holiday pay? If it does, then she will have a right to holidayeven though she wouldn't under general law. If not, tell her she's not an employee and she's not getting it!

I paid her a fee and she was liable for her own PAYE, NI ..etc, as with the other children in her care. The contract states full pay for all holiday and has an additional hand-written clause which states "28 working days" under holiday entitlement. It DOES NOT state she is eligible for holiday pay for not taking her holiday. I also gave her 6 weeks notice as per the contract, so she could have taken her holiday then...

Well that sounds fine then. If the contract says she can take 28 days holiday a year for which she will be paid, that's fine, and either she's taken it by the time your contract ends or she hasn't. Unless there's something specifically in there saying you must pay her for holiday not taken then she doesn't have a leg to stand on. As you say, she could have taken it during the 6 weeks notice if she wanted to. She will still be able to take it after your contract ends and be paid it by whoever her remaining clients are anyway.