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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48154
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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FAO Ben. Could you advise please how the role must be

Resolved Question:

FAO Ben Jones.
Could you advise please how long the role must be dormant before it can be re-recruited; given the nanny is employed through the limited company, is there an option for us to change horses by personally employing someone outside of the company and I have attached the termination clause from the contract, could you advise if we can serve payment in lieu of notice? Many thanks.The termination clause from the contract is as follows ( the contract was a proforma version provided by the agency we hired her through, do may not be as thorough as it could be):
"10.1​If either party wishes to terminate this contract, notice shall be given as following:(a) during the first eight weeks of employment (“the probationary period”), not less than one week’s notice
(b) thereafter, not less than four weeks notice."
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hi there, there is no minimum period the role has to be dormant for before you can recruit someone else but you have to consider hr ability to challenge this. If you tried to argue that the role is redundant and then recruited someone new a week later then your reasons for terminating her could appear unfair. Whilst she is not protected against unfair dismissal having less than 2 years service, as discussed she could try and argue that the dismissal was discriminatory because it was due to her pregnancy and redundancy was only a cover to get rid of her. There is no minimum service required to claim discrimination so she could claim that even with less than 2 years in the job. However, there is a time limit of 3 months to make a claim from the date of dismissal so ideally you want to ensure you do not replace her for that period. If you then recruit someone new in the position once that time has passed she would not be able to make a claim anyway, even if she could have within the time limit. So the ‘safe’ period is 3 months.

Looking at the termination clause there is no provision to terminate her employment by paying her in lieu of notice so you would have to allow her to work her notice period, or if she is off sick for all or parts of that period – to still allow her to be an employee for that time. Saying that you are able to mutually agree an immediate termination by paying her in lieu of notice so you could so as long as you have her consent.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
Many thanks Ben. Would you mind just clarifying what the likely worst case would be if she did pursue a discrimination claim?
Thanks
Expert:  Ben Jones replied 1 year ago.

it would be a claim for compensation for injury to feelings and also compensation for loss of earnings as a result of the discriminatory dismissal

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Expert:  Ben Jones replied 1 year ago.

Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

Ben Jones and 3 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks Ben for all your help. I'll ask for you again if we need further assistance.
Expert:  Ben Jones replied 1 year ago.

You are welcome all the best for now