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Ben Jones
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 38343
Experience:  Specialist in UK Law with expertise in UK Employment Law
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Hi, my childminder excluded my child on Friday for biting her.

Resolved Question:

Hi, my childminder excluded my child on Friday for biting her. There have been reports from her of him being badly behaved over the last month, but nothing that she has specifically asked us to improve or outline conditions for change. He has just turned 3. She has terminated the contract without notice now, without any consultation or giving us the opportunity to address the matter with her, stating "if the child's behaviour is/or becomes, such that the safety and wellbeing of the childminder or the children in her care are threatened, the childminder may terminate the contract without notice". She now states that she cannot refund the rest of the money we paid her in advance at
the moment as she is not in a financial position to do so....she says to wait a couple of weeks. So questions in would like to ask are:

A) is she in breach of contract ( as the rest of the wording on the NCMA contract states " it is not appropriate to use this course of action (termination without notice) where the behaviour is a one off incident which could easily be resolved") ? He has never bitten her before and I would challenge the circumstances leading up to the event, as apparently it was over a knocked over cup and she chastised him over this. Usually, she would require to give us 4 weeks notice.
B) Can we raise a claim through the courts for the money? I feel it unreasonable for
her to withhold money we have paid, for a decision we had no control over.
C) If she is in breach, can we claim for the 4 weeks notice and loss of earnings, due to now having no childminder?

Thanks for your help.
Submitted: 2 years ago.
Category: UK Law
Expert:  Ben Jones replied 2 years ago.
Hello, thanks for your question. Please press Accept when satisfied with my answer. For now please let me know how long she worked for you for? Wat contract is she employed under - one directly with you, through an agency, etc?
Customer: replied 2 years ago.
She started looking after him in March, this year. No problems reported until a few weeks ago. She is employed under the NCMA contract, which is standard childcare protocol. Thanks
Expert:  Ben Jones replied 2 years ago.

But she is employed directly by you?

Customer: replied 2 years ago.
Sorry, no she is self employed
Expert:  Ben Jones replied 2 years ago.

Can you not get a new childminder instead of looking after him yourselves?

Customer: replied 2 years ago.
unfortunately, this has put us off, and to be fair, registered childminders in our area are few and far between. We have him booked to start a private nursery in September, but they may not be able to take him at such short notice. We are both professionals, and work time taken out affects us both financially
Expert:  Ben Jones replied 2 years ago.

What is the particular incident that led to this?

Customer: replied 2 years ago.
hi Ben, we think it has all transpired since she took on additional children, a baby, a child, about a year older that our child, with special needs ( which she did not inform us about - not sure if she had to inform us though). Since the holidays started, she is also looking after a child about 8/9. It has been the start of the holidays when the trouble has started, really. I attach a copy of the email, I sent to her on Friday


To:
Subject: Lucas
Date: 12 August 2011 16:26:48
Hi Karen

Just thought it would be useful to clarify our position in respect of the events which occurred today.

Firstly, Martin and I are unhappy at your decision to exclude Lucas today. We feel this was unnessessary and counter productive, both to Lucas and us, as we had to take time out of work to arrange emergency childcare. We were not consulted at any stage, either during or the conclusion of the process. Your policy does not state that exclusion is a behaviour management tool of any kind or a final solution.

 Lucas has not displayed any challenging behaviour at home or when with his grandparents, so therefore, we must assume the root cause permeates from your childcare setting and environment.

It appears, no coincidence, that Lucas's behaviour changed in your setting, when you took on the baby and an additional child, of who Martin advised me today, has some special needs.  You also have an older child, since the start of the holidays, and it appears that you have been feeding back reports of his bad behaviour since that time.  I also have concerns on the activities you undertake with the children.  They seem to be predominantly, home based. While this is fine, sporadically, I am sure you will agree that a 3 year old child will not thrive if being in the house for long periods of time.  Trips out, especially day trips appear to be a rare event these days, according to Lucas's day notes.   I recall specifically asking you to ensure Lucas attends kids clubs, playgroups etc, to ensure he has interaction with children his own age. You assured me this would happen.  Whilst this seemed to happen for the first couple of months, this appears to have dropped off the radar in recent months.

Martin and I both agree that Lucas is being compromised is your existing setting, and realistically it does not appear to be working for any of us.  

We believe that long term, we need to look for another provider. However,   In order to attain some kind of positive transition, Lucas will require to return next week before your holiday. I will be happy to discuss the benchmarks required to manage his behaviour within this period. 

let us know your thoughts on what you feel is the way forward.  

kind regards

Lorraine & Martin
Customer: replied 2 years ago.
The particular incident was that apparently, Lucas deliberately overturned the older child's cup (aged 8/9) . The deputy childminder ( her sister ) tried to put him on the reflection step. He retaliated by kicking, verbally abusing and trying to bite. Karen (childminder) decided to intervene...in what way we don't know. But he responded by biting her
Expert:  Ben Jones replied 2 years ago.
Sorry for the slight delay. I will address your questions below:

A) This very much depends on what is normally regarded as behaviour that threatens the childminder’s safety and wellbeing, as well as taking into account the circumstances of this particular situation. Biting in general could qualify as such a reason but if this was an isolated incident and there is no evidence continued threat towards the childminder then terminating the contract with immediate notice could be considered somewhat excessive. You could also take independent advice from the NCMA on whether they consider this incident serious enough to justify instant termination (tel: 0845(NNN) NNN-NNNN)
B) Technically yes but if that money will be forthcoming in the next few weeks by the time the claim goes ahead you may have been paid anyway and would have wasted the court fees. I suggest you give her a formal letter asking for the money you are owed to be repaid within 7 days, failing which you advise her that you will have to consider legal action to recover it.
C) You can claim for the notice period but I am not as confident that you could claim for loss of earnings as this could be considered somewhat of a remote type of loss. You can certainly claim for it in your claim but I don’t think you will get it.

Please press Accept and I can expand my answer and provide more detailed advice and guidance as required. I will also answer any specific questions you may have. Thank you
Customer: replied 2 years ago.
Hello again Ben, just need some more clarification on point A). I have called the NCMA today and spoke to someone who considers the childminders action to be excessive. She said they would never, to her knowledge, advise a childminder to exclude a child and unless the child had had continued episodes of violence towards the childminder or other children and all avenues had been exhausted through her input and ours, they would not advise the termination without notice clause. So basically, now asking if you feel she is in breach of contract?
Customer: replied 2 years ago.
Only asking about the breach of contract because, she owes us 1 week's fees as she on holiday from the 22nd and we do not pay for her holidays. However, if she should have given us 4 weeks notice, then presumably, we are entitled to claim for this?
Expert:  Ben Jones replied 2 years ago.
Following the advice from the NCMA and considering that this was an isolated incident it is more likely than not that she was in breach. If you have found a new childminder to replace her immediately and suffered no losses as a result then you can’t really claim much. However, if you have not found anyone you could try claiming for the 4 weeks’ notice she owes you. You would, in any event, be entitled to any other money you have given her in advance for her services.

Please remember to press Accept, thanks
Ben Jones, Solicitor
Category: UK Law
Satisfied Customers: 38343
Experience: Specialist in UK Law with expertise in UK Employment Law
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