Tuesday, May 26th, 2015
Given the thrill of the light-hearted, jovial fun and adventures that Mary takes Michael and Jane on, you would be forgiven for failing to see Mary as an employee and Mr Banks as her employer. In fact, Mr Banks did everything you would expect an employer to do in recruiting Mary to be the new nanny; from sending out a job advert, shortlisting candidates and eventually, somewhat reluctantly, agreeing with the terms of employment offered by Mary (albeit after a gust of wind had blown all of the other candidates away). Mr Banks even considered firing Mary when he became tired of the ever more cheery atmosphere at his family home.
In the modern day, this relationship, believe it or not, would be fraught with statutory rights, contractual obligations and guidance from various EU directives. Families who are now intent on finding their own Mary Poppins, Mrs Doubtfire or even just a sensible and reliable nanny to look after their young children would do well to consider the consequences of establishing an employment relationship (even if not intended).
It is important to ensure you get adequate protection from the various future claims that might arise in what should be the safety of your own home. Here are just some of the things to consider:
Providing certain terms is a requirement under UK law and believe it or not, failure could potentially cost you up to four weeks of their gross pay in the future. Doing a search on the internet or just somehow getting hold of a “standard contract” is about as useful as buying a standard hat. If it does not fit, it could cause you headaches. This person will become integrated into your family, so make sure that the terms are right. It is usually cheaper than getting it wrong. It is best that both employer and employee understand the terms of employment from the outset to ensure that the contract makes good sense and is not unnecessarily complicated. Candidates for domestic work come from all over the world and so it is important to be clear in the language of your agreements.
Holidays & Sickness
As an employee, your nanny or housekeeper (or other domestic worker) is entitled to a minimum of 5.6 weeks paid leave each year (typically made up of four weeks plus the usual bank holidays). Even though they may join you on your holidays, this may not count as leave for them. They should also still be paid if you are going on holiday and they are not required to join you.
Subject to certain qualifying criteria, your employee is entitled to Statutory Sick Pay (currently at £88.45 per week) on absences of four or more days in a row (including weekends or holidays) for up to 28 weeks. Be aware that since GP sick notes have been replaced with “fit notes”, GPs no longer sign employees as fit to work. If an employee is or becomes disabled, you may find that you are under a legal obligation to make adjustments to their duties, hours, equipment or your home.
Pregnancy / Maternity
Many nannies become childcare professionals because of their genuine love and desire to care for children. It should come as no surprise therefore that a nanny may decide to have children of their own.
You may have to:
Any decisions placing your nanny at a disadvantage may be discriminatory.
As an example, if you employ a live-in nanny or housekeeper and they are pregnant, asking your nanny to leave your home or their separate accommodation temporarily whilst you move in her maternity cover replacement could amount to a disadvantage. You might well be obliged to arrange for suitable alternative accommodation, which would have to be of a similar standard to that currently provided. This is a problem that can easy multiply if you have employed a couple (and there is a growing trend for doing so), as you may find that you have another child under your roof that you had not bargained for when you offered the couple accommodation as part of their terms and conditions. It could be more damaging still if your “standard contract” does not deal with the point at all. Of course, while you may be obliged to offer the employee their job back after their maternity leave, you are not under any obligation to permit your nanny to bring their child with them to work.
Equally, do not fall into the trap of asking candidates if they are planning to have children or screen out candidates on the basis that they are of child-bearing age. Applicants for your vacancy are entitled to bring tribunal claims to challenge your decision not to appoint them if it was on the basis that they are having or may have children.
The time inevitably comes when you must end the employment relationship due to your children growing up, dissatisfaction, incapacity or misconduct issues.
If not managed correctly, liability to unfair dismissal and payment for loss of future earnings could follow. You may also owe a minimum notice period; and, if the services of the nanny are no longer required, a redundancy payment calculated on past service may be obligatory.
It is easy to be seduced by the idea that because someone is coming into your home to work with you, your family or your children, it will be a relationship that is built solely on mutual trust, understanding and reasonableness. Remember that, as an employer, you will shoulder almost all of the legal burdens and responsibilities that large trading companies owe to their staff. The risks involved here can be addressed and minimized by taking proper legal advice from the point that you are considering creating an employment relationship, and ensuring that you have a source of advice and support to the time that you wish to end the employment.