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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9325
Experience:  I have been practising for 30 years.
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I need to dismiss my pregnant nanny due to change in

Customer Question

HI I need to dismiss my pregnant nanny due to change in childcare provider
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Could you explain your situation in a little more detail please and exactly why it is that you need to get rid of the nanny?

Customer: replied 1 year ago.
My nanny started working for me last year September. In April she has informed me that she is pregnant. She is due to go on maternity leave at the end of July. Obviously I need to change my childcare provider ( I will be sending my children to nursery school). Therefore the position of the nanny will no longer be. I had a redundancy meeting with her to say there is a possibility of being made redundant - she said its not redundancy because she hasn't worked with me for 2 years but It should be a dismissal. I know she is going to try and sue me because she thinks im making getting rid of her because she is pregnant but I need to get rid of her because Im changing childcare provider and the job will no longer be available when she returns from maternity leave. What process do I need to do so I don't get sued ?
Customer: replied 1 year ago.
The meeting was recorded and her father come with to the meeting
Customer: replied 1 year ago.
Was doing a redundancy thing the correct procedure?
Customer: replied 1 year ago.
hi are u still there
Expert:  F E Smith replied 1 year ago.

It may be semantics but even though she has not been there for 2 years, from the description you give, it is still redundancy. The relevance of the 2 years is that she is not entitled to redundancy pay in that time.

What she is likely to claim is that this is unfair dismissal because she is pregnant. I know that you’re aware that you can dismiss she is pregnant but you need to be very careful of how you word this. For example, you say “Obviously I need to change my childcare provider”. It is the word “obviously” which is a problem in that sentence because a tribunal judge would take it that you were referring to changing your childcare provider because the nanny was pregnant.

If she decides to take you to tribunal, then you are going to have to prove that you were changing childcare provider regardless of whether the nanny was pregnant or not. You are going to have to come up with some reasons as to why, in order to convince the court if she decides to go down that route.

She is obviously entitled to a reason in writing (after 12 months) why she is being dismissed and of course notice or payment in lieu of notice and holiday pay. What you might want to consider doing is getting her to sign a properly drafted Compromise Agreement where she gets a chunk of money and signs away her rights to go to tribunal where she may win or lose. Sometimes it’s better to have money in the hand than speculate in court. You would have to agree, in agreement to pay the legal costs (up to a certain level, £250 plus VAT) for her to get legal advice on the effects of the agreement. The only way of guaranteeing that your stay out of the tribunal is the Compromise Agreement, because if she then decides to go to tribunal after you have paid her and she has signed the agreement, you can produce the agreement to the tribunal and her case would get thrown out. In cases like that, you can always ask the judge to award costs against her on the basis that she has been unreasonable in bringing the tribunal claim after signing a Compromise Agreement and that you have wasted costs in dealing with her spurious claim.

Can I clarify anything for you?

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We can still exchange emails.

Best wishes.

Customer: replied 1 year ago.
At the end of it all I have to get rid of her. does it make a difference if I do it before she goes on maternity or during her maternity leave?Can the reason I give to make her redundant before she goes on maternity leave is that my situation has changed. The childrens father used to help out with transporting the kids to the nanny, now I have to. I need the flexibility of hours that a nursery provides. If cant transport my kids to her then there is no job? Is this valid reasons?Would I have a better case of dismissing her after she has had the baby because by then the children are in nursery school and I can say im making her redundant/dismissed as the job is not longer as the kids are better off in nursery?
Expert:  F E Smith replied 1 year ago.

For the purposes of this, maternity leave is no different than employment.

The reason you mention could be a reason. It depends whether, if she takes it to tribunal, it’s accepted by the judge.

Incidentally, there is case law in which a lady applied to do maternity cover. They withdrew the offer because it turned out that she was pregnant and could not do the job. She took them to tribunal and won and she wasn’t actually employed ever by them, they only withdrew the offer.

You could make her redundant after she returns to work, and not safer, provided it’s nothing to do with her then having a young child which he needs to look after. If you don’t mind paying some money, the safest way is the Compromise Agreement.

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
What's the procedure if I do make her redundant and she decides to see. Does it go straight to the employment tribunal or does it go through acas first for mediation
Customer: replied 1 year ago.
Hi I found emails dated 7th April from me to a nusery school applying for a place for my kids. The nanny wrote a letter saying she was pregnant dated 18th April. Is that enough evidence to prove that I didn't make her redundant because she was pregnant but because I was changing childminder/nusery school.
Expert:  F E Smith replied 1 year ago.

It can go through mediation if you both agree to go to mediation but that is no point in mediating unless either of you is prepared to change your viewpoint.

There is no problem in you deciding that you no longer want to have a nanny and you want the children to go to nursery school. What you have to convince a tribunal would be that you did not make that decision because the nanny was pregnant was going to have to go anyway.

That would be sufficient evidence if those emails were exchanged before you found out that she was pregnant.

Customer: replied 1 year ago.
Great thanks so much. I have emails date 4th 7th 10th of April and her letter was dated 18th April.
Expert:  F E Smith replied 1 year ago.

Hopefully, that will be enough to fend off any tribunal claim.

Customer: replied 1 year ago.
I don't have a signed contract with my nanny . We only have emails saying we would give each other 4 weeks notice if things didn't work out between us when she first started working. Does that still count as a contractual agreement ? Because I'm not sure how much notice I need to give her for redundancys? Give her the 4 weeks as said in the email or 1 week as she has only worked for less than 1 year.Thanks
Expert:  F E Smith replied 1 year ago.

The statutory minimum after such period of employment, if nothing else has mentioned in any contract is 1 week. However, if you have mentioned it in the emails, I would play safe and give 4 weeks.

Customer: replied 1 year ago.
Thanks very much.
Expert:  F E Smith replied 1 year ago.

Glad to help

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