Urgent advice needed nanny contract

[Attachmentmum]

We've recently hired a nanny before I go back to work full time in February. We agreed to start her on a two day week before I went back to work as a kind of retainer until I started work even though we didn't really need her. There have been several odd incidents including a few white lies, kids being taken to shopping mall over Xmas, taken to soft play with her boyfriend without asking etc most importantly she really hasn't bonded with my daughters. I feel we are just a pay cheque to her and there is no warmth or love! So I'd like to stop the employment ASAP. She is still in her probationary period so I thought I would give her notice (I really don't want her looking after my kids now as I feel it would be awkward after finishing so soon). Anyway have just looked at her contract and it says I have to give 2 months notice (or 3 months notice if potion is being made redundant) 'notwithstanding' probationary period which I ha looked up and that means in spite of eg, the probationary period makes no real difference! Is this legally binding? Any advice greatly appreciated thanks

[Saffron]

Is a probationary period written into the contract, or was it an informal agreement?

[Attachmentmum]

the exact terminology regarding termination of contract is "Notwithstanding the probationary period under this contract and following confirmation of your employment on the employer may terminate your employment on 8 weeks notice or such longer period"

[Attachmentmum]

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[Pickle]

The use of "notwithstanding" confuses this a little. Generally I would take this to mean that the probationary period is a separate situation (and usually there would be a specific separate notice period assigned to the probation), and once this is up, the standard notice period applies.

Is there a separate clause in the contract relating to the probationary period?

[Attachmentmum]

yes the clause about the probationary period says that the first three months of your employment will be a probationary period during which your performance will be kept under review?.thats it!

thanks so much for your advice much appreciated

[amydown]

It may be helpful for you to give one of the nanny payroll companies a call - even if you don't currently use one, they are very helpful in giving ad hoc advice in my experience.

We use Nanny PAYE (have done so for 6 years) and they are very helpful.

My personal interpretation of the above is that the notice period does not apply to probation period but I'm not a lawyer!

[devsdev]

Most nanny contracts are 4 weeks notice (from either party) and immediate (or max 1 week) notice during the probationary period which is usually the first month. The "Notwithstanding" could be read either way, but your best bet is to argue convincingly that the probationary period is not subject to the 8 week notice period and that you therefore have no required notice period to give her (should she question it). If you are happy to give her 4 weeks pay in lieu of any notice period then do so to avoid any arguments since ultimately she's being paid for not working and can look for a job herself. If you are not happy with her then definitely terminate the arrangement as soon as possible - you should be able to leave your kids in childcare (nanny, nursery, childminder) and walk away without any concerns. Working is stressful enough without constant concern about your children's welfare! Having said that, have you had any conversations with her about your concerns?

If you do look for a nanny in the future I recommend getting a contract from one of the nanny tax companies or from the forum (happy to share ours) so you have control over the terms.

[Saffron]

I agree with devsdev and Pickle's interpretation of the wording. That was my understanding as well. I'm taking "notwithstanding" to mean "regardless", so the terms of the full contract would not apply to the probationary period.

[bodsier]

My understanding of the words 'notwithstanding' means 'in spite of' meaning that the same notice applies in probationary period as well. However it sounds like the probationary period can be reviewed if it isn't a case of 'no longer needing a nanny'. For example the contract is between yourself and the nanny, would the fact that 'other parties' (boyfriend) were present without your consent constitute as a breach of contract? I have been an au pair in the past, and I wouldn't dream of including anyone else in a day's work without consent from my employer.

[binkylilyput]

Bringing boyfriend into the working day without your consent would be a breach of trust if not contract? I'm assuming you've not seen his DBS/CRB check?! At the very least the white lies and bringing the boyfriend along shows little respect of professionalism during the probationary period, when people are on their best behaviour.

[squash]

I agree that the use of "notwithstanding" is ambiguous and probably misplaced. You could however credibly argue that the termination clause is intended to operate outside the probation period (otherwise what would be the point of having a probation period?). The next part of the clause is also important as it suggests that the right to terminate comes into play "following confirmation of your employment" something which you normally do at the end of a probation period once the parties are happy with how the first month(s) has gone.

[Attachmentmum]

Thanks so much for all this brilliant advice is making me feel so much less stressed about the whole situation! In retrospect I realise how silly I was to sign the contract there and then and not take it back for a proper read of the terms. But maybe that's why she has been dialling it in in probationary period and meeting boyfriend etc because she knows it will be hard for me to get rid of her!

[devsdev]

We have been very lucky to have had two excellent nannies who were (well, one still is working for us) very diligent, honest and truly excellent with the kids. My 3yr old can tell me everything so I know she's happy and they all have fun together doing interesting things. Our nanny asked me today if she could drop by one of the shopping malls after a playgroup to exchange some shoes and I thought of your situation - I have absolutely no problem with her doing so but definitely like to know if she does things like that. Not being told about where they're going and what they're doing would make me wary.

Anyway, I wanted to note that, as with all childcare options, it's about finding the right fit for you and your kids. Has your older one been in nursery before? Perhaps a childminder might be a middle ground? If you have been the primary carer for your kids for a while then you'll find a period of time when they play up no matter what the childcare. My older one (who had previously been with a nanny but from 2yrs to 2.8yrs was with me) really played up with our current nanny for at least a month. She would hit her sometimes (knowing it was wrong), cry when I left in the morning etc but then have a fun day with her when I wasn't around. Now she absolutely adores our nanny but still has days when all she wants is me (which is pretty frustrating when I'm trying to leave the house!).

Hope you're able to terminate the contract without too much trouble - you have no obligation to continue employing her and are giving her a fair settlement for termination of her employment during the probationary period. So don't stress about it, just have a conversation before she leaves today and if all goes well you could just start with a clean slate on Monday and not worry about it this weekend). Try not to be apologetic about it either - it'll suggest you're somehow doing something wrong when you're clearly not.

[Attachmentmum]

thanks devsdev and everyone else for really useful advice has been very helpful

[LondonMix]

I would read that notwithstanding meaning 'excluding'. I work with legal contracts all the time and I'd say that you would be very unlucky for anyone to interpret it otherwise if it was brought to court. I hope you find the right solution for your family.

[SLad]

Notwithstanding in a legal context creates an exception to the position as it otherwise might be so, depending on the exact context and assuming there's no specified notice period during the probationary period, then I think the clause would likely be interpreted by a court as demanding a 2 month notice period which is unusual and very onerous. As a pragmatic suggestion, perhaps you could dismiss her and offer to pay 1 month in lieu of notice and she whether she quibbles. Then you could always negotiate something between 1 and 2 mths to get rid of her. The context however will be key.