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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73957
Experience:  Qualified Employment Solicitor
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We employed a nanny with the understanding she would be

Customer Question

We employed a nanny with the understanding she would be leaving in Dec 2020 and my daughter would then start preschool.We found out she was pregnant and as we were her employer, we agreed to claim maternity pay. The baby was born six months premature and then passed away. We continued to pay maternity pay on the understanding our nanny would not return to work. However, she has since got pregnant again and now wants another round of maternity pay, despite having no intention to ever return to work,She's now asking for holiday pay and there are annual admin costs involved. How can we get out of this loop? Are we still her employer?The nanny's due date is November 29th 2021 and she is willing to resign asap. Would handing her notice in now avoid the 15 week SMP cut off?
Submitted: 19 days ago.
Category: Employment Law
Expert:  Ben Jones replied 19 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 19 days ago.

How long has she worked there for, when did you originally employ her? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 19 days ago.
Thanks.She worked from April 2019 and we had previously agreed that she would work for us until Dec 2020. However, she fell pregnant a couple of months before then and went into labour in November 2020.She was contracted to 8 hours a week but typically worked around 16-20 hours.
Customer: replied 19 days ago.
then once we realised we were obliged to give her SMP, we were then working on the agreement that would end in August 2020. However, she's not pregnant again and I assume we're still obligated to pay her SMP for another nine months? We can claim the monthly payments back, the issue is holiday pay and the admin charges for Nanny Paye and the fact that we don't have a nanny vacancy and don't want her under our employment.
Expert:  Ben Jones replied 19 days ago.

Did either of you issue notice of termination of employment at any time around the date when her employment was supposed to terminate?

Customer: replied 19 days ago.
We were going to, but she gave birth 7 months early (November 1 2020). Nanny PAYE said we were then unable to issue the termination as we were going to do that at the end of November 2020. So she had effectively given birth while still our employee
Customer: replied 19 days ago.
we do have transcripts and so on which can verify the fact that she was intending to leave
Expert:  Ben Jones replied 19 days ago.

Ok thanks. The main issue is that her employment was never officially terminated and she is still legally your employee to date as no notice was given by either party and simply having an intention to leave is not enough. Formal notice must have been given to give a clear indication that the party issuing it wanted the employment to terminate.

As far as the new pregnancy is concerned, she would be entitled to another round of SMP if she meets the qualifying criteria for it, specifically being employed by you for at least 26 weeks going into the 15th week before being due.

Therefore, if her employment terminates before the 15th week before the due date, she won’t meet the criteria and won’t be entitled to SMP. This means that if you were to end her employment (or she resigns) at any time before week ending 15 August, she will miss out on the SMP qualifying criteria.

Expert:  Ben Jones replied 19 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

Customer: replied 19 days ago.
Thanks Ben. So just to confirm, we would able to terminate her employment even though she's on SMP? And we would have to pay holiday pay too?Her original due date was Feb 2021 and she gave birth in Nov 2020, she was only working up to the first few weeks of pregnancy before we would have terminated things. It seems that because she gave birth prematurely, we're then her employers accidentally for potentially an extra 18 months.
Expert:  Ben Jones replied 19 days ago.

Being on SMP does not prevent you from terminating her employment, however it does not end her SMP either and she continues to receive that just as if she was still employed by you. The only thing you need to watch out for is that you are not terminating her because of her pregnancy as that would amount to discrimination.

The fact that she gave birth prematurely would not have tied you in to be her employer for any amount of time, her employment could have still ended at any time thereafter. However, if she had already met the criteria to receive SMP, she would have continued receiving that even if her employment had terminated

Customer: replied 19 days ago.
Thanks. I think Nanny Paye have given us some very bad advice.
Customer: replied 19 days ago.
Oh one last thing... We have the full SMP from HMRC, but if we terminated employment, would we just go on paying that or return it to HMRC?
Customer: replied 19 days ago.
Just to check. If we can terminate her employment whilst on SMP we will cease to be her employers. So when the 15th August comes, even though we are still paying her SMP via HMRC, we won't be her employers and therefore will not be responsible for SMP for the new pregnancy?
Expert:  Ben Jones replied 19 days ago.

The first question I cannot say with certainty because it is more of a specialist issue for a tax adviser rather than an employment lawyer (we deal with eligibility etc, whereas the mechanics of payment, especially through HMRC, are for tax advisers). We do have a section on that here though if you needed more specialist advice

And yes to the second question - you are not her employers at the time, even if you still pay her SMP for the first pregnancy so will not be liable for the SMP for the new pregnancy

Customer: replied 19 days ago.
Expert:  Ben Jones replied 19 days ago.

You are most welcome and all the best