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Ben Jones
Ben Jones, UK Lawyer
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I have employed a nanny for 11 years. It has worked well

Resolved Question:

Hello there
I have employed a nanny for 11 years. It has worked well generally and we have beed good employers.
My wife died last year and in many ways the kids need the nanny more than ever emotionally. This is despite the fact that they are 12 and 15. So the nanny comes in at 7:30am as she has done since the younger was 6 months old, the kids go to school at 8:30am then come home at 3:30pm or later if activities, before the nanny leaves at 7:00pm. This she does for 3 days a week.
When the kids went to secondary school the nanny started doing housework on one day and then agreed with my wife that she would also do the odd babysitting gratis - twice a month.
After my wife died she announced her pregnancy and went on maternity leave, before coming back asking that she could bring the baby. I agreed but said we would review at 3 months. This I did and said something didn't feel equitable but I would come back to her.
It is clear that I am effectively paying her to look after her 9 month old child 1 to 1 for 7/8 hours a day. She can no longer babysit and indeed has asked to take the child to baby groups on Thursday and Friday. The older he gets the more time he needs. It is also clear now the holidays are here they can't go out and about as they used to.
Don't get me wrong we do get on, the kids like the baby and the atmosphere is ok but it is an elephant in the room. Emotionally the kids need her but in truth financially it is a huge drain on me since my wife used to pay it.
In many words she has the best job in the world and is making no allowances for the situation - taking her holidays in September to save money although knowing I am taking 3 weeks off in August.
So what I want to know are my legal options.
Apologies if these seem hard hearted but I need to understand the options.
1. I can't make her redundant as the kids need her but it will cost me dear when I do in future. Given she has no mention of bringing her child to work in her contract could I justifiably say to het that by wanting to bring the baby to work she has ended her contract. I could then offer her a new contract including the child but effectively the meter starts running again re redundancy i.e. nothing if in next 2 years. Is this lawful. It is not something I want to do but there needs to be some quid pro quo for my paying her childcare costs.
2. As an alternative if I want to put her down to 2 days and she doesn't want to , am I effectively left with no option but to make her redundant or back down as I would be effectively saying her 3 day a week job has gone.
2. If she accepts 2 days does that immediately become the basis of future redundancy payments?
Er that's it.
Thanks you.
Nick
Submitted: 5 months ago.
Category: Law
Expert:  Ben Jones replied 5 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 5 months ago.

Is she employed as an employee or self employed worker?

Customer: replied 5 months ago.
Hi BenSorry my broadband went down as well as the power!She is employed by us. As you know the world of nanny's is bizarre as they only ever think of net although we obviously pay gross and handle the Tax through Nannytax. She is therefore not self employed nor was there ever a clause that had a fixed term or an age of children clause that would end it. She was the only nanny we have ever employed and struck lucky.Kind regardsNick
Expert:  Ben Jones replied 5 months ago.

Hi Nick

In all honesty there is no easy way to go about this. To claim redundancy you must show there is a reduced need for employees to carry out this particular work. It could apply if for example you decide to take on the duties yourself or transfer them to a family member or even someone who is a non-employee, such as a self employed worker or agency worker. However you would have to pay her redundancy pay and a notice period.

What you could try and do is indeed rely on the baby situation where you make it clear that whilst you have nothing against her having a baby, she cannot be expected to bring it to your hose and be paid for the time she is not looking after the children but just her baby. If she was able to carry out her normal tasks with it in tow that would have been no issue but if it is now beginning to affect her work productivity and ability to do hr usual tasks then you can argue that you should not have to allow her to bring it when working for you. In these circumstances you could try and rely on terminating her current contract for ‘some other substantial reason’ which is a potentially fair reason for dismissal. You can then offer her a new contract which b she is free to accept or reject.

If you offer her a new contract for 2 days and she accepts it then any future redundancy calculation will be based on this – her previous terms become irrelevant. If she refuses to accept it then you could go down the dismissal above. You would need to show that there is now a change of working requirements and that her current circumstances no longer make it possible for her to perform these.

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 5 months ago.
Thanks BenIt is pretty much as I imagined it. In truth were it my decision alone I would end her employment and pay redundancy because it is crackers at present - I need 16 hours of childcare over 4 days and have 33 over 3 meaning I am paying her to look after her baby. But everything isn't normal and the kids are emotionally attached to her which given recent events with their mum means something. I also like her but do feel she has not made any allowances for my change of circumstances and none at all for her own - she pays no childcare and I pay hers and there is a sense of entitlement that jars with me.Some clarity please:1. Surely I could make her redundant and pay her off as the age of the kids means no childcare is needed and she would not be replaced. Not something I desire but just to confirm?2. I can think of no other job where taking a baby to work would be tolerated so it is a strange position. For the sake of clarity does the fact that she is bringing him in with all the feeding, bathing, changing and entertaining he needs not mean by definition she is breaching her terms of employment. I as employer have "absolute discretion" in her contract whether an activity is prejudicial to her duties. Surely therefore she has effectively breached her existing contract and I could insist she not bring him in or start disciplinary procedures against her which would only be resolved by her leaving or not bringing him in any more. Again not something I desire but I need to know the worst / baste case scenario.
3. If so vis a vis 2 above, than by allowing her to bring him in for 3 months have I weakened my case? I did make it clear I would review it.4. If I simply say drop your salary by 20% to recognise the baby's time and she refuses presumably I have to accept it or make her redundant?Many thanks Ben.
Kind regardsNick
Customer: replied 5 months ago.
Addendum:Hi BenThinking further:I am minded to offer her 3 options to choose from:1. She goes to 2 days
2. She accepts a 20% pay cut
3. She accepts a new contract THAT INCLUDES THE BABYWould option 1 or 2 mean I had to make her redundant or would she effectively be agreeing to a new contract WITH A NEW START DATE or would it need to be AN AMENDMENT TO THE EXISTING CONTRACT (assuming this latter one is right but is it)?Would option 3 mean that she had to resign and work notice before being employed under a new contract with new terms?Sorry not simple.Best wishesNick
Expert:  Ben Jones replied 5 months ago.

Hi there, to go down the redundancy route you must show that there is a reduced requirement for an employee to do work of a particular kind. One potential difficulty here is if her job has continuously evolved over time, then there may have been an implied change in her terms to accommodate this as your kids grew older, so he can argue that she is no longer employed on the original terms anyway. Saying that you can argue that the current job, taking into account the existing tasks and hours is no longer required so you are making her redundant from it. You can then make her redundant, pay her what she is due and if she wants to stay in the new job then she can do so, but she would have had her continuous service terminated for future redundancy payments.

So the options you should consider are:

· Offer her a change of contract which she has the chance to accept (be it a reduction in days or pay or inclusion of the baby)

· Make her redundant from the current position

Option 1 means that she will be accepting a variation to her contract but it can also be a new contract issued – in either case she keeps her continuity of service if she is made redundant in the future.

Option 2 means she will get redundancy now and it will amount to a break in continuity of service. You can offer her a new contract still and if she accepts it she can continue working for you but it will be treated as a new contract with a new start date.

If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you

Customer: replied 5 months ago.
Hi BenThanks for this.Final clarity - 2 QUESTIONS.Surely in her bringing a baby to work she in no longer able to fulfil the terms of her original contract with all the feeding, bathing, changing and entertaining he needs not least because I as employer have "absolute discretion" in her contract whether an activity is prejudicial to her duties. QUESTION 1 : Could I not insist she not bring him in or start disciplinary procedures against her which would only be resolved by her leaving or not bringing him in any more. Again not something I desire but I need to know the worst / baste case scenario. With this backdrop she may be more prepared to negotiate as is being totally inflexible at present.What I would ideally have is her work her 33 hours of 4 days which would suit me better but she won't agree to this at present even though she is not working that day. Why should she as she is currently having me pay her to look after her baby alone for 21 hours a week. I need really to understand what the stick is as I know the carrot!It does seem crazy that I have no control over whether I pay her childcare costs without having to make her redundant. QUESTION is there any way I can get her to lawfully trade her continuity of service for the time she now has with me paying her childcare costs? It is not a huge amount of money vs the £000's of free hours she's now getting.Thanks and sorry to push.Nick
Expert:  Ben Jones replied 5 months ago.

Hi Nick, whilst you may have absolute discretion in this regard you still need to apply this fairly and reasonably so if she is actually able to still fulfil the majority of her duties even with the baby, then you cannot just say you have the discretion to choose she is not and apply it in that way. However, if it is clear that she cannot fulfil her contractual requirements then it may become a capability issue rather than a disciplinary one. So you are going to be arguing that she is no longer capable of doing this, rather than she is not willing to do it – that is the difference between capability and misconduct. So really you are looking at capability proceedings rather than disciplinary ones.

So you could try and go down the capability route where you warn her that she is no longer capable of performing her job which could eventually result in dismissal. He issue is that you cannot just dismiss – you need to give her warnings over time and allow her to improve if possible. You could however use this as a negotiating tool to get her to agree on a new contract which would remove the need for any performance monitoring.

Customer: replied 5 months ago.
Thanks Ben - appreciate the time and effort.Final point I promise - surely I can absolutely insist that she does not bring her child to work. I can think of no other situation where this would be in doubt. It is surely slightly binary either I can allow it or not? If she then chooses to leave it could not be constructive dismissal or do nanny's get their own rules. I'm writing this is a house with screaming baby and full of baby clutter. My kids are 15 and 12.....Nearly there.
ThanksNick
Expert:  Ben Jones replied 5 months ago.

Yes you can insist on that – and if she cannot perform her job otherwise then you can use the capability procedure. She can apply for flexible working but you can reject that on specific grounds. You should do it sooner rather than later though because the longer she is allowed to bring the baby, the more she could try and claim that there has been an implied acceptance by you that you were agreeable to this.

Expert:  Ben Jones replied 5 months 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.

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