Breaking of a maternity assistant's employment contract by an individual employer
Verified 15 December 2023 - Legal and Administrative Information Directorate (Prime Minister)
An individual employer who employs a registered childminder may decide to terminate his employment contract. This breach of contract has the same effects as a dismissal, but follows specific rules.
How do I break the employment contract of a childminder? How long is the notice period? Does the employer have to pay compensation when the contract of employment is terminated? What documents must he deliver at the end of the contract? We are taking stock of the regulations.
These termination rules are different depending on whether the contract is a DTA: titleContent or a CSD: titleContent.
DTA
The work contract of the childminder may be freely broken during the trial period or said adjustment period if it is provided for in the contract of employment.
This rupture must be notified in writing, but it is not mandatory to state the reason.
However, that ground cannot be based on a criterion discriminatory or unlawful.
Yes, the employer may terminate the contract of employment of the childminder. That's what we call removal of the child.
The employer is not obliged to indicate the reason for the child's withdrawal. However, it cannot be based on a criterion discriminatory or unlawful.
In some cases, the childminder is protected against the breach of her employment contract.
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General case
After the trial period, it is possible to no longer entrust the child to the childminder and to break the employment contract.
The employer may exercise the right of withdrawal of the child. Such withdrawal shall entail the termination of the contract of employment.
This decision of rupture (for removal of the child) is notified by registered letter with AR: titleContent or hand delivery against dump.
Pre-maintenance is not required.
Termination of contract envisaged during pregnancy of maternal assistant
During the pregnancy of the childminder, the termination of the contract shall be possible only in the following 2 cases:
- Fault serious
- Impossibility of hold the contract on grounds foreigner to pregnancy
The employer who wishes to terminate the employment contract notifies the failure by registered letter with AR: titleContent or hand-delivered against dump.
Pre-maintenance is not required.
The letter shall obligatory specify the motives retained.
Termination of contract envisaged during maternity leave of the childminder
The breach of contract is not possible during the maternity leave of the childminder.
Termination of contract envisaged during sickness of the maternal assistant
The illness cannot be the reason breach of contract, this ground being discriminatory.
It is possible to terminate the employment contract during this period for a reason foreigner to the disease.
The employer who wishes to terminate the employment contract notifies the failure by registered letter with AR: titleContent or hand-delivered against dump.
Pre-maintenance is not required.
It is not obligatory to indicate the reason for the break, but in this context, it is advisable to do so to limit disputes.
In the following cases, the employer and the childminder must terminate the employment contract.
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Death of the child entrusted to the childminder
The death of the child who has been entrusted shall entail the automatic termination of the contract of employment on the day of death.
The employer or a third party shall inform the childminder in writing of the date of the child's death.
Suspension, withdrawal or amendment of the approval of the childminder
Department departments must notify to the employer suspension, amendment or withdrawal the approval of the childminder.
The employer and the childminder shall be required to suspend, withdraw or amend the approval.
From this notification, the child can no longer be entrusted to the mother's assistant.
The individual employer notifies the maternal assistant by letter RAR: titleContent or by hand delivery against discharge on forced withdrawal of the child.
This shall take effect on the date of notification of the suspension, amendment or withdrawal of the authorization by the departments of the Department.
Warning
the employer and the childminder shall not conclude any conventional break to break the employment contract.
If the child is removed, notice must be given between the parties.
Seniority in determining the length of notice shall be calculated on the day of the registered letter's mailing date with AR: titleContent or hand-back against dump.
The minimum period of notice depends on seniority the childminder in the service of the individual employer.
Maternity assistant's seniority | Minimum period of notice |
|---|---|
Less than 3 months | 8 calendar days |
Over 3 months and less than 1 year | 15 calendar days |
Over 1 year | 1 calendar month |
Can you be exempted from notice?
The rules vary depending on whether the exemption is initiated by the employer or the childcare worker.
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By the employer
The employee shall be paid as if he had worked during that period. The period of notice not worked shall be taken into account for the determination of entitlement to paid leave and for the calculation of seniority.
Requested by employee
The rules vary depending on whether or not the employer grants the waiver of notice.
Employer's agreement
The employment contract shall end on the last day worked. The employee is not paid for the unrealized part of the notice.
Refusal of the employer
If the employer refuses, the employee must give notice.
If the employee does not give notice, the employer may ask the employee to pay him compensation equal to the amount of net remuneration corresponding to the duration of the unrealized notice. They may also request damages.
Can the notice be postponed or suspended?
The notice shall be suspended in the following situations:
- Accident at work Work stoppage following an occupational disease
- Maternity or adoption leave
- Taking paid leave, unless the parties agree otherwise in writing
These suspension periods postpone the end of the notice period.
Please note
in case of gross negligence, of gross negligence or withdrawal of approval, there is no no notice. The contract is terminated on the day of notification the breakdown by the individual employer.
The notice shall start on the day of 1re presentation of the letter recommended with AR: titleContent notifying the breakup the contract of employment, or the day of hand-over against dump to the employer.
In the event of the child's withdrawal, the following allowances shall be payable:
Severance pay
From 9 months seniority, severance pay is due. It is not due in case of gross or serious misconduct.
Seniority is calculated as of date dispatch of letter notifier breaking up.
In case of death of the child of the individual employer, this seniority condition is deleted and the compensation is due.
Sound upright equals 1/80e of the total gross wages received during the duration the contract (excluding maintenance and meal allowances).
Please note
This allowance shall not be pitch due in the event of amendment, suspension or withdrawal of approval.
Compensatory leave with pay
If there is any untaken paid leave remaining on the date of termination of the contract, a leave allowance paid is due.
This allowance shall be equal at the higher of the 2 amounts:
- Gross remuneration received by the employee for a period of work equivalent to that of the remaining paid leave
- 1/10e of the total gross remuneration received in the reference year
FYI
if the reception period is 46 weeks or less, the employer shall, where appropriate, pay adjustment which can only be to the advantage of the childminder.
Documents to be submitted
The individual employer duty submit the following documents:
- Work Certificate
- Receipt for balance of any account which details the sums paid when the contract of employment is terminated
- Certificate for Pôle emploi
A service allows to carry out online the steps related to the termination of the employment contract:
Procedures for termination of child care contracts
Time limit for the submission of documents
The deadlines for submitting documents vary depending on whether the employee gives notice or not.
Executed Notice
The documents are delivered on the contract end date, i.e at the end of the notice period.
Waiver of notice by employer
The documents are delivered on the contract end date, i.e at the end of the unexecuted notice.
Waiver of notice requested by the employee
Total waiver of notice
Documents shall be submitted at the latest 2 calendar weeks after the last day worked.
A certificate stating the date on which the employee is free of any commitment may be given by the employer to the employee who so requests.
Please note
where the period of notice is less than two weeks, the documents shall be submitted at the date of termination of the contract, that is to say at the end of the period of notice.
Partial waiver of notice
Documents shall be submitted at the latest 2 calendar weeks after the last day worked.
A certificate stating the date on which the employee is free of any commitment may be given by the employer to the employee who so requests.
Please note
Where the partial waiver of notice is less than 2 weeks, the documents shall be submitted at the date of termination of the contract, i.e. at the end of the notice period.
Disputes shall fall within the jurisdiction of the prud'homme council of the home of the childminder.
CSD
The work contract of the childminder may be severed at will.
Such a breach shall be notified in writing, but it shall not be obligatory to state the reason for it. However, that ground cannot be based on a criterion discriminatory or unlawful.
An employer who wishes to break the probationary period must meet a notice period under the following conditions:
Duration of presence | Minimum warning time |
|---|---|
Less than 8 days | 24 hours |
Between 8 days and 1 month | 48 hours |
After the test period, the anticipated failure of the CSD: titleContent is permitted in the following cases:
- Agreement between employer and employee
- Serious misconduct
- Force majeure
In other cases, the early termination of the CSD may give rise to damages.
Their amount shall be at least equal to the remuneration which would have been received until the end of the contract.
The employer must pay the following allowances to the childminder:
Termination benefits
The employer pound to the childminder an allowance termination date (said precarious allowance) equal to 10% of gross remuneration total paid during the contract. This allowance shall not be pitch due in case of rupture for gross negligence or force majeure.
Compensatory leave with pay
If there is any untaken paid leave remaining on the date of termination of the contract, a leave allowance paid is due.
This allowance shall be equal at the higher of the 2 amounts:
- Gross remuneration received by the employee for a period of work equivalent to that of the remaining paid leave
- 1/10e of the total gross remuneration received in the reference year
FYI
if the reception is on 46 weeks or less, the employer shall, where appropriate, regularize the salary, which may only be to the advantage of the childminder.
At the end of the employment contract, the individual employer must provide the employee with the following documents:
- Work Certificate
- Receipt for balance of any account which details the sums paid when the contract of employment is terminated
- Certificate for Pôle emploi
A service allows to carry out online the steps related to the termination of the employment contract:
Disputes shall fall within the jurisdiction of the prud'homme council of the home of the childminder.
Who can help me?
Find who can answer your questions in your region
For information on labor law (e.g. duration of notice, amount of allowances)
Telephone administrative information - Allo Public Service
The informants who answer you belong to the ministry responsible for labor.
Cost: free service
Attention: the service does not respond questions relating to unemployment compensation and representations to Pôle emploi, civil servants or public service contractors, the amount or payment of social, wage or employer contributions.
The service is available at the following times:
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For information on termination procedures
Urssaf service Pajemploi
To find out if you are an individual employer (using Pajemploi to pay for a personal service) or an employee declared with the Pajemploi device
By telephone
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Protection of pregnant employees
Discrimination
Early termination of fixed-term contract
Collective Agreement, Articles 118 et seq
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