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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47340
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I have a contract with my child minder and an addendum (in

Customer Question

I have a contract with my child minder and an addendum (in the form of the body of an email) which states that any changes are to be made with one month's notice. On Thursday, she shouted at my wife in front of our children, upsetting her and the kids, to the point that we felt we couldn't continue to trust her with our children. She now is claiming for one month's payment in lieu of notice. Do we have grounds to refuse to pay?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Was there a notice period for termination of employment?
Expert:  Ben Jones replied 1 year ago.
Just to let you know I am in and out of meetings this morning so may not be able to respond fully until lunchtime at the earliest, but you can reply to me on here at any time, thanks
Customer: replied 1 year ago.
Hi Ben,Not in the contract itself, but she sent a follow up email, as below. There was no further contract signed at this time, this was simply an email, stating the contract extension from the previous term and including the wording about a notice period:On 30 Dec 2015, at 12:34, Aneli van der Merwe wrote:Hi Amber,Hope you all have a great time off.The fees per month from January 2016 is £975.00 for both of the kids including discount for sibling, again all meals and transport to and from school.This is an 8 month contract from January to end August as I know things will probably change again, but if you/me need to change during this period you are welcome to do so with a 1 month notice period.Remember that Edenred's amount is included in above monthly fee.See you guys TuesdayAneli
Expert:  Ben Jones replied 1 year ago.
Many thanks for your patience. It would be appear that you had a fixed term contract due to last until August and there was no specific clause for early termination. It could be argued that the clause allowing for a change to the contract could also be viewed as an early termination clause (as you will technically be making changes to the contract by shortening its duration). In that case there would be a requirement to give a month’s notice as per the agreement, even if that was not part of the official contract (I would be viewed as its own separate contract). The only argument you could run is that she was guilty of gross misconduct and in these circumstances she would be getting dismissed with immediate effect and not entitled to any notice. However, for that to stand up you have to show that she had committed such a serious act which meant that you could no longer continue employing her and that the trust and confidence had been breached t such an extent that the only option was immediate dismissal. You could try and argue that but it is not necessarily going to cover it because her actions are not necessarily gross misconduct. Yes, they were not great and it could mean that you are no longer going to use her services but they may not be enough to justify instant dismissal so some notice period may still be required on your part. You can nevertheless try to use the gross misconduct argument and refuse to pay her – she may not take it further but it is her right to challenge it if needed. This is your basic legal position. I have more detailed advice for you in terms of the options you have in the event she takes the matter further, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
What would constitute gross misconduct and what is the burden of proof if she challenged us to do so?
Expert:  Ben Jones replied 1 year ago.
Thank you. Gross misconduct is misconduct so serious as to justify summary dismissal of an employee. What constitutes gross misconduct may vary according to the particular circumstances of the employer and the work the employee is carrying out. Usually it would include things like theft, fraud, physical violence, serious negligence or serious breach of health and safety regulations. A one off occasion of shouting unless things got seriously out of control may not be serious enough to amount to GM so the burden of proof is on you to show that it was serious enough but the issue is there is no specific list you can refer to, it does depend on the individual circumstances.