My daughter started with our previous childminder last year, but the childminder informed us soon after that she was pregnant and that we would have to look for alternative child care for my daughter. During her pregnancy she had taken time off due to sickness related to the pregnancy. We had to use a backup childminder and this caused some distress to our daughter. We had tried to find a new childminder so we could permanently move my daughter because we didn’t really want her to go through another transition period in such a short space of time. Our childminder went into labour a week early so our daughter went to the backup childminder where she has been very happy and settled extremely well. She has been there for just over two months now. We gave our permanent childminder notice to terminate our contract. We made sure we were doing it as per what was stated on her contract.
We first informed her we would be terminating face to face and she was fine with it and actually said it might be better for her. After our visit we sent the notice in writing which she then sent a response stating “I am happy to accept your notice of intention to quit with four weeks’ notice, but it is with regret that I must inform you that full payment is still required”. The contract says notice must be four full weeks and not include holiday periods.
We have tried to inform her that we are aware of what the contract states and that she is not on holiday which is why we gave her the notice when we did. If she is implying her maternity leave is a holiday then she would have breached her contract which states she would only take a maximum of four weeks holiday.
She has now turned her argument and is using the Equality Act 2010 and is trying to go down the discrimination route due to maternity leave.
Are we wrong for refusing to make this extra payment to terminate our contract as we were already having to pay another childminder to provide the service?
I note that your normal childminder has been on maternity leave and you have been using an alternative childminder during this period, who you have decided to stay with. You have given the requisite four weeks’ notice to terminate the contract and your normal childminder is now asking for payment in full for this four-week notice period, despite her not providing any services to you during this time.
Your childminder has provided an extract of the contract which she appears to rely upon for seeking payment from you; namely Contract termination – four weeks’ notice. Specific information relating to the termination of the contract – termination of the contract must be in writing and must be four full weeks and not include holiday periods. You have given four weeks’ written notice and this notice does not include any holiday period. We have not been sent the full agreement so are unable to comment with certainty on the rights of payment during a notice period. Similarly, we are not able to advise on the status of the relationship, i.e. whether it is an employment relationship or otherwise.
However, by way of a general point, usually, payment is due for services provided during a notice period unless the contract is terminated without notice and a payment in lieu of notice is made. Given that you have provided notice to terminate the agreement, there is an argument to say that you do not need to pay your childminder anything over and above what is payable under the contract; if you are not currently paying for services then we would advise that you respond to the childminder to confirm that you have complied with the contract and given four weeks’ notice which does not include any holiday period. You should also confirm that the reason for termination is that you no longer require her services. Finally, you should also confirm that you strongly resist any request for payment over and above what would be payable during this notice period (and if you are not paying for services then this would be nothing). Finally, we would advise that you strongly resist any inference that you have discriminated against her, on the grounds of maternity leave or otherwise; you simply no longer require her services.
Clearly if the contract has more specific wording regarding the relationship, what happens during maternity leave or notice period or if you have been paying for services then this advice may change as it has been given based on a small extract of the agreement. Please let us know if we can assist further in this regard.
*Lucy Flynn has assisted in answering this question.