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Family threatening court action.


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We employed a family member for child minding duties for a year and never bothered with a contract (big mistake I think).

We no longer use her and she is saying we owe money for days she did not work!

Some of these days were sick days and some were days we didnt need her.

When she did work she rarly done a full 8 hours, normally she would leave once one of us got home i.e. 1/2hr early and on some occasions a few hours early. we still paid for the full day anyway without complaint.

She is claiming we owe for days we did not need her to work and if we dont pay her she will add on the sick days too when taking court action.

We never said we would pay her for full weeks whether she worked or not! She has just added up the weeks of the year that are term time then taken the figure for this as a yearly salary amount then subtracted what we did pay her (not including sick days though) which leaves her claim amount.

 

I dont see that she has a very strong case and there are other factors involved too.

 

What do you guys think?

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Did you pay her cash? Did you pay national Insurance for her? Deduct Tax?

 

How close a Family member is she? Sounds very much as you are doing well and there is a bit of envy from her?

 

If that is the case, is she claiming any benefits from the state? If she is then I suspect that she is trying to play you, as can you imagine her making an official complaint to the ET stating she was working for you between date X and date Y earning £XXX per month and claiming JSA or ESA etc?

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Just to add she is not happy we chose to go with a proper childminder as she has an easy number with us, i.e she is not registered so doesnt have to deal with the hastle involved and got to play all day in the sun for money!

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How long did the arrangement last for? 9 months in total.

What was discussed as to what her duties were and times etc beforehand? she would work term time only and would do 8-4 each day for £30 a day paid monthly

How much is she wanting? £250ish out of court or £300+ in court.

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no where near. this was agreed by both sides and is not in dispute. £30/8hrs = £3.75p/h

This is a normal rate for a childminder but they normally look after up to 5 or 6 kids.

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Personally, I would tell her to go take a hike. Explain that any employment rights for employment under 12 months are extremely limited. Explain that you were not happy with how she undertook her duties or that she was not a registered child minder.

 

This of course is if you are in the UK, as HB states employment rights outside the Uk would be different and not appropriate for us to comment on.

 

I would imagine also that to take you to an Employment Tribunal for such little cash would be extremely distressing for her and that frivolous or vexatious claims could result in her paying costs to you far in excess of what she is asking for.

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Was she declaring this income to HMRC?

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My advice is based on my opinion and experience only. It is not to be taken as legal advice - if you are unsure you should seek professional help.

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It's unlikely that she'd be classed as self-employed.

Without a contract of any kind; the chances are that she could have a claim for minimum wage, holiday and notice pay.

If you think that paying her £250 would resolve this, I'd do it pronto before she gets advice. It's the cheaper option.

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Are you saying we should just accept she wants money for days not worked and pay her anyway?

She says we agreed to pay if we asked her not to work, we did not say this.

She has send a massive email listing all the money we spent in the last year on things like home improvements and personal items, even the food in the fridge!

She commented our salaries were probably above average etc this is in my opinion provocative!

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It's unlikely that she'd be classed as self-employed.

Without a contract of any kind; the chances are that she could have a claim for minimum wage, holiday and notice pay.

If you think that paying her £250 would resolve this, I'd do it pronto before she gets advice. It's the cheaper option.

 

Childminders are self employed generally?!

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There isn't enough information here to determine for certain whether or not she was an employee.

HMRC have an ESI indicator you could use to get a better idea.

 

What I'm saying is that if she was an employee she could claim unpaid holiday pay, notice pay and the balance between the amount you paid her and the NMW.

 

If she did this it would cost you a lot more than £250.

I'm just suggesting that if you think that paying her £250 would put an end to the matter once and for all, it makes economic sense to do so.

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I am thinking of suggesting we split the amount between us, her calculations are a bit off so I have recalculated at £219.20 I think £110 is a reasonable offer, she assumed she would be paid we assumed she knew she would not. neither side ever mentioned whether we would or not so we should both put it down to experience and leave it at that. If she does not agree with this she is obviously just on the make.

As far as I see it she was not supposed to be an employee she was helping us out with childcare and we offered to give her money for helping us out.

She needed money, we needed childcare:(

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You are in a better position than us to judge what's best to do. I hope you can happily resolve things.

 

Just a final few words of warning:

From the little you've posted it seems more likely that she was a nanny (as papa suggested) than a childminder, which would make her an employee.

What either of you believed or intended the arrangement to be at the time doesn't matter in law.

If she decides to take things further Employment Tribunals are free and all the information she needs to make the claims I mentioned earlier is easily available here and in hundreds of other internet sites.

She would only need to show that she worked for you for 15 days to recover the £250 she's asking for. So, you can probably work out how much a Tribunal could award her.

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