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4 Facts you need to know Before Terminating your Nanny
We all get to this at some point!
We find that one Nanny that we think shall do the job in a better way and for a longer period than the last; the one we hope who shall not pull off a ridiculous stunt or quit on a Sunday evening! The working relationship starts off great, and then BOOM! its done… ‘She just has to leave’
So then what do you do?! according to the law that is.
Necessity of following the law when dismissing your Nanny. Dismissing your Nanny, as she is an employee, for a reason other than one allowed by law, without following the correct procedure or giving adequate notice, may lead to a claim for unfair or wrongful dismissal against you. Compensation from a successful law suit can potentially be substantial.
Even if you win the suit, the costs of defending it, in terms of time management and legal costs, may be significant and are not usually recoverable. So the following are just some of the things you should do before you fire your Nanny:
1. Establish whether there are grounds for dismissal. There are several potentially fair reasons for dismissing your Nanny:
● Their conduct at work; for example theft.
● Their inability to carry out their job because they lack the necessary skills required; they just can’t get the diaper tying thing right-as light as it may seem, it may just work.
● Their absence on long-term sick leave and inability to return to their job.
● Their job is redundant. You know, your kids are grown now and there is no one in the house who needs 24/7 attention.
● Their continued employment would be illegal, for example if they are in the country illegally.
● They are being dismissed for what is known as “some other substantial reason”, that is something not falling into one of the above categories which nevertheless warrants dismissal, such as where the relationship between the parties has broken down.
Dismissing an employee for any reason other than those listed above will be unfair.
2. Follow the correct procedure. After your Nanny has crossed the qualifying period of service (one year), you can not trigger an automatic dismissal, otherwise he/she can claim for unfair dismissal. However, certain dismissals are deemed to be automatically unfair and an employee is protected as soon as they start work. These include dismissals connected with pregnancy or parental leave.
3. Check the employee’s contract It is possible to dismiss an employee fairly but still be in breach of contract if you have not given them the correct notice under their contract. You do not want to take any action that could breach the Nanny contract because:
● It may lose valuable protections in the contract such as post-employment restrictions e.g. Confidentiality.
● The employee may have a claim for wrongful dismissal in breach of contract.
4. Payment in lieu of notice clauses: A payment in lieu of notice clause is a contractual right that enables you to pay your Nanny a lump sum rather than require them to work out their statutory or contractual notice period.
● Before terminating employment and making a payment in lieu of notice, you should ensure that the contract of employment they wish to terminate allows for termination in this way. If the contract does not allow for pay in lieu of notice to be made, then it will probably be a breach of the contract to do so.
● If you decide to make a Notice, it must notify the employee that pay in lieu of notice is being made to them in exercise of the employer& contractual right to terminate the employment with immediate effect. Simply making the pay will not be sufficient to bring the contract to an end.
For more on Legal procedures visit Uwakili.