Pregnant nanny and changing contract

[surreysue]

Can anyone advise? I took on a nanny in March 2009, and advised at interview that my child was on a nursery waiting list. A couple of months into the post, she advised me that she was pregnant. Am I able to accept this nursery placement, which has now come up (after a year wait). Additionally, my intention is to gradually increase the nursery days, when they become available. What do I say to my nanny, who is soon to go off on maternity leave, as to whether any part of the job may be there when she returns from maternity leave. Am I allowed to do this, or would this be unfair dismissal/ sexual discrimination? Additionally, I would like to consider making 2 of my half days of work into a full day, so that I can look after my son at home one day a week. Can I consider this, knowing that my nanny is pregnant and wants to return to work with me after she has had her maternity leave? It's a bit complex all this...!Any tips gratefully received.

You can make her redundant IIRC because she genuinely would not be needed, even if she weren't pregnant.

Did you at any stage put it in writing that your child was on a waiting list for nursery? Can you prove easily that your child was on the waiting list?

Guidance here on employees rights when pregnant or on ML, here for making employees redundant and here for more maternity info.

A genuine redundancy is perfectly OK, but you may need to be able to prove that it was genuine. If she said you didn't make it clear that you were going to accept this nursery place if it came up, then what proof do you have that you are making her redundant and not dismissing her because she is pg?? TBH a court might simply ask why you did not give your nanny a temporary contract given the circumstances, rather than a permanent one? And that could be a hard question for you to answer.

It all hinges on three things: (1) what evidence you have regarding the fact that this was only going to be a temp job (being on a waiting list won't swing it in isolation) (2) Is your nanny likely to believe she is being mis-treated in any way, and would she kick up a fuss, and (3) are the facts so clear in your own head that you would be a persuasive witness if you were grilled about all of this?

Also, did you ever discuss the intention of gradually increasing the nursery days with the nanny?

Generally, making a nanny redundant is pretty straightforward and perfectly ok if switching to a nursery, but the fact that she is PG raises the qn in people's minds that there is a hint of discrim. And once there is a suspicion of discrimination, the onus is on the employer to prove that it was NOT discrim, rather than on the employee to prove that it WAS. So tread carfefully.

Carfefully? I almost wish it were a real word, it sounds so nice and cosy

Great, thank you. Any other advice also very welcome. In response:

1. my contract was a fixed term contract for a year. Sadly not signed by the nanny. But signed by me, and verbally agreed, and copy given.
2. I have correspondence from the nursery advising me that they have not been able to get me a place, on several instances.
3. Now that I am accepted for the nursery, and will then now be on the internal waiting list, more days may come up...but this is out of my control. Hence, I cannot let the Nanny know whether she may become redundant. I do know, however, that I would like my son to try and be spending an increasing number of days at nursery, before he starts school.
4. My salary has been dropping over the last year, and again last month. It would make financial sense for me to merge 2 of my half days into one day. ie reducing the need for a nanny by a day. I have thought about this after knowing she is pregnant, and I am unable to be certain that this is not unfair. Certainly from my perspective it would be a good idea, but I had not planned this before I had known she she was pregnant, but have considered it this month when my earnings have gone down again. It's difficult....

Thanks

Based on what you've said, I think you should be ok, provided you do everything very carefully.

In terms of evidencing that this was always the plan, you have your own evidence. Even if the nanny were to dispute this, it is backed up by the one year contract (doesn't matter that it wasn't signed) and the nursery waiting list. Once you've shown that moving to a nursery was always your intention, increasing the days should not be a problem - it's a pragmatic approach as days become available. As Squiffy says, there is always the risk of discrimination allegations in this situation, but what you did does seem pretty clear.

On a practical side, how sure are you that the nanny will want to come back after maternity leave? Unless you git on an arrangement to let her bring her baby with her, most will not. It doesn't make economic sense, and people who want to look after babies all day for their job often want to look after their own (IYSWIM).

If you think that there's a liklihood she won't come back, I would advise her before she goes off that, as she knows, you have been waiting for a nursery place and that it has just come up. Therefore, whilst she is off on maternity leave, your DC will be going to nursery. I would then say that you can't be sure whether there will be a role when she returns from maternity leave - nursery may not suit your DC, or you may not have all the days, so there may be a part time opportunity even if not full time. I'd get specific advice on writing this in a letter from an employment lawyer if you can possibly afford it.

Reassure the nanny that this will not affect her maternity pay in any way (it won't). If she thinks she may not come back, reassurance on the money and a sort of vague open-ended ness may result in her confirming at the end of maternity leave that she's not returning and you not needing to do anything.

Thank you RibenaBerry, that was kind of you to reply, and your advice really helpful.

One thing you could do is make sure any upcoming days of nursery aren't going to affect her maternity pay if they start before her maternity leave starts - there is a specific set of weeks that maternity pay is calculated on - sorry I don't know which weeks they are.

Good luck

It's roughly weeks 18-25 that get used, so if she's going off soon then you should be fine. Direct gov has more information.