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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47904
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I need some advice on how i should handle a situation with

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I need some advice on how i should handle a situation with nanny who works with me. My nanny was going to leave my employment just as i was leaving for holiday with my family. We agreed she could stay on after negotiations and clarifications on what is expected from her. She was paid weekly while we were on holiday which is fine but now that we have returned, i suspect she may still want to leave and had the intention of leaving. I don't know if this is the case, but if so, i want to know if i have a case against her as it would mean she had the intention of leaving even while we were renegotiating and saw an opportunity to get the 3 wks pay while we were on holiday. A summary of our discussion amongst other things was: - I wanted better commitment and stability (She has a history of making inconvenient plans and giving ultimatums where things are not suitable for her) - i wanted to retain as i wanted someone familiar and trusted to run school errands. My son was starting school which would involve travelling some distance. - Clearly stated if the intention was to leave, its best she does not take up this offer so that i can start earlier to get used to whoever would be her replacement and she agreed. - Also stated clearly that i would not take it likely if i came back from holiday and she decided she did not want to stay as i would take it as defrauding me and will fight her about it because it means she knowingly lied to get the free weekly salary while we were on holiday. If she had left us, her last day would have been the day we left for holiday. None of this was documented. I just want to be prepared. Thanks XXXX

Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has she worked for you?
Customer: replied 2 years ago.

Hi Ben,

Its been over a year. She started in Apr 2014

Expert:  Ben Jones replied 2 years ago.
Did either of you formally submit notice of termination of employment - did she formally resign at any point or did you mutually agree that her employment will terminate?
Customer: replied 2 years ago.

No we did not. She was employed through an agency to be mother's help/nanny housekeeper. We have the contract for that and usually i liaise with the Agency when she has any issues or questions. Her main role was to assist my mother in-law who was terminally ill. She has since passed (Mar-15) and her duties now is nanny/housekeeper which i don't have any issues with. She was not that great with grandma but with the kids she is fine and her time keeping great.

She asked to leave just after we lost grandma (next day - we also found this insensitive) but agreed for her to keep working while she found another job. I notified her Agency that she expressed her interest in leaving. She was registered with another agency so i believe she was trying to find another job via the other agency. she had not found one as we were going on holiday and i had also not found a replacement yet so i had a discussion with her and she agreed to stay on. All verbal no formal notification in writing was given

Past problems with her:

Took holiday in Nov-14 instead of in Dec when we agreed she could go. She had planned the holiday before she started work but came to us about 10 days before her travel date and said she had to go in Nov. It was not convenient because of grandma at that time.

She also had issues about holiday pay which we tried to clarify with her and also got her Agency involved to explain to her. The contract stated she gets holiday allowance after a year of working with us. She eventually understood and realised she misunderstood.

Expert:  Ben Jones replied 2 years ago.
Thank you and what are you hoping to achieve in this situation exactly?
Customer: replied 2 years ago.

I have been back a week. I want to know if she decides within the near future (tomorrow, a week) that she is leaving after agreeing to stay on, will i be able of file any suit against her? I would see it as having falsely saying she would stay on knowing she would get paid while on we were on holiday but still had the intention of leaving.

Expert:  Ben Jones replied 2 years ago.
Generally your rights will be rather limited in this situation. This person is free to decide when she leaves your employment, even if she had previously discussed the option of staying on for longer. You cannot force her to stay working for you, regardless of whether she had previously told you that she is likely to continue working. If you want to cover yourself for the possibility of her leaving early and not giving you enough time to sort out a replacement, then this is dealt with through an appropriate notice period which she would be expected to work if she decided to leave.
So even if she was contemplating on staying and you relied on that to pay her during your holidays that does not mean you have a claim against her. You should also check if she would have been entitled to such pay regardless – for example what would have been the usual arrangement if you were off on holidays – would she have been entitled to a payment anyway because if that was the case then contractually you would have been responsible for this.
The only potential claim would be if it was clearly agreed that you would pay her on the condition that she remained working for you and this was clearly agreed, for example for a specified period of time. It could be that this then created a binding contract between you. So if she then goes back on that specific agreement you could try and claim she has acted in breach of contract and pursue her for the payments you made in good faith and based on that agreement. Issue is that with nothing in writing it is your word against hers and any claim would be risky as the lack of evidence could mean it can go either way.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
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