Possibly illegal childcare arrangement

[Radiatorvalves]

My first question is whether this is ok, and second is, if not, what should I do if anything.

So I was talking to an acquaintance who has gone back to work FT after first baby, and asked whether baby was going to nursery. She explained that they had a live in nanny to save money. Nanny gets up on week nights when baby wakes at 3am.

I have had APs for years and know what is and what isn't allowed for APs, but what she described sounded very different.

Nanny is from Romania and isn't qualified but has lots of experience - she is 45. She lives with family but (from what I understood) has child FT (very different from the APs who do 25 hours a week). Nanny is paid less than £100pw and as my acquaintance said, less than NMW. She thought that was ok as she gets board and lodging. Apparently they also pay for insurance.

Just about everything that was said to me worried me and as the conversation continued I got more concerned.

The person knows I have AP experience and that I am a solicitor.... I made it clear that I am no expert, but did ask about tax (she thinks they might be paying some, but not much as it is under threshold - her DH sorted it all) and I also said that I wasn't sure you could justify less than NMW on the basis the person has board.

Can anyone give me chapter and verse as to what is allowed in the following situation...
Having a live in unqualified nanny of 45 yo.
Working at least 40 hours pw, although I suspect more given the comments about getting up in the night.
Presumably you could pay NMW and offset a reasonable amount for board and bed? Is this right?

And any advice as to what I should do? Depending on what you lovely MN people come back with, I intend to tell her exactly what the law says... This sounds like classic exploitation to me.

Thanks!

[uglyflowers]

I would beak out.

[ATruthUniversallyAcknowledged]

It sounds exploitative but not necessarily illegal.

this suggests no nmw for live in nanny.

[AnthonyBlanche]

OP if you are a solicitor why not research the law yourself if your friends childcare arrangements bother you so much?

[LaurieFairyCake]

Yes, it sounds like slavery to me. Actual slavery. Can she leave?

Because I don't understand what a 45 year old woman is getting out of this . That's not enough money to send back to family.

[AnchorDownDeepBreath]

Well it's clearly exploitative but I don't believe it's illegal. There's no minimum wage for live in nannies, I don't think and nannies can choose how many hours to work the same as everyone else.

Why the woman would do it is another matter entirely, but it's probably not illegal on your friends part.

[GreenTomatoJam]

They'll need to have pension provision sorted out no matter what - even if they're paying under the NI thresholds etc.

It's possible it works differently for domestic, live-in staff, but for other staff, benefits in kind (eg. accomodation) are still taxable I thought (I am none of these things, but I used to have a nanny)

[GreenTomatoJam]

www.mumsnet.com/Talk/childminders_nannies_au_pairs_etc/1289894-nanny-au-pair-benefits-in-kind

nah - it turns out that this is probably entirely legal - even if it seems very dodgy

[Spellcaster]

Employer can make a charge for board and lodging out of the wage - e.g., live in hotel staff. Nowt illegal there. Depending on going room rental rates where the house is, the charge could be most of the pay! There's no law against paying NMW for a job that should be paid more highly either. So... The situation is probably not illegal, but potentially exploitative in a moral sense. Depends if the nanny knows her rights? Did they find her through an agency?

[SouthWestmom]

www.gov.uk/au-pairs-employment-law/nannies

Do they not tell you about Google at law school Op?

[Radiatorvalves]

Thanks ATruth - that article was helpful. I don't know the specifics (whether they eat together etc) so can't work out whether NMW should apply. I think I will forward her the link.

She isn't a friend, more of an acquaintance through work. I did say I thought she needed to check that the arrangement was legal and I'd see if I could find any info.

Laurie - that is exactly my concern. I read an article about a Nigerian boy imprisoned as a slave in N London this week. She seems a nice enough person, but I guess the "hosts" of that boy did too.

i do t want to spend hours on something that isn't my business, and all the research in the world won't help if I don't have all the facts. However pointing her in the right direction is a first step. I got the impression that she'd left everything to her DH, so links that set out the basics very helpful.

Thanks

[RB68]

just because OP is a solicitor doesn't make her an expert in every area nor does it make her a google expert, nor does it mean she can wave her magic pencil and expand time to fit available tasks

Employment law is specialist particularly in this area of live in stuff. Other than that am going to look at some of those links myself

[fusionconfusion]

Is the age relevant?

Remember in some countries APs get very minimal wages indeed eg 60 or 70 euro a week and can be asked to do pretty much anything, so it may seem very attractive vs exploitative to her.

[Radiatorvalves]

As with many HMRC links, the one above isn't at all helpful on this point. Google has its uses, but also its limitations. Thanks RB68!

[Radiatorvalves]

I put in age to make it clear she was not an AP. If I was a lawyer engaged in this matter, I would need a lot more info before I could begin to think about advising! The practical experience of MNers is v useful.

It is interesting that most MN threads on APs have one poster who claims that even the most reasonable of host families is exploiting the poor AP. This seems a lot more egregious but opinions are split.

[lougle]

NMW doesn't apply. She's an EU citizen so no visa required. It's up to them to negotiate.

I don't know which bit you think is illegal but so far nothing you've mentioned is.

[Radiatorvalves]

I can't see how (on the minimal facts that we have) anyone can say with certainty that NMW does or does not apply. Whether it does would seem to depend on how the set up is organised.

Maybe her biggest risk is that the nanny finds out she could earn an awful lot more elsewhere and leaves them in the lurch.

[OhBeloved]

Lougle why do you think NMW does not apply to someone who is employed? AfAik that's the point of NMW - it is universal and applies to everyone who is employed.

[BaronessEllaSaturday]

OhBeloved There are exceptions to the NMW and live in nannies in certain situations are one of the exceptions. The biggest risk to your acquaintance op is that the nanny finds out that she is entitled to NMW and claims it, that could get a bit expensive.

[PiperIsTerrysChoclateOrange]

It's hard to comment as none of us know how many hours the mum works and how many hours does dad work.

Does mum and dad work shifts, weekends as well as week days.

[LynetteScavo]

I don't think anything illegal is going on here...maybe a 45yo woman just wants a year or so out of her everyday life maybe the woman was desperate for a roof over her head for what ever reason...who knows why she took the job.

She won't stay long though when she realises anyone else would pay her at least double.

[PrincessMouse]

Hi Op

We have a nanny (not live in so rules may differ) and her remuneration was negotiated before she started. She's classed as employed by us rather than self employed. For comparison we agreed a basic (£10 ph plus all expenses whilst at work and petrol). Because she's classed as employed I would assume NMW should apply and under the new pension regulations we will have to comply as per any other employer. Again this is because she's classed as employed rather than self employed. Bearing this in mind I would assume NMW should apply if she's classed as employed?? I am not an employment or employment law specialist so I am probably wrong. We also have to organise and pay her tax because she is classed as employed. We do this via Nanny Pay www.nannypaye.co.uk Maybe your colleagues DH has a similar arrangement via Nanny Pay.

With regards the hours worked. Our nanny has worked in excess of 50 hours at times. Not just for us. She works 26 hours for us but she also works for two other families and she will babysit for previous charges. She tends to manage her own hours.

On a side note regardless of living arrangements I thinks it's awful and exploitative to not at least pay NMW.

[TheCraicDealer]

I dunno what the legalities of the situation are, but I don't think it's on that you're being told to mind your own. There's a massive push on at the moment to raise awareness of vulnerable people being exploited in domestic situations just like this. Not all those being trafficked end up in brothels you know. OP might be being over cautious but I'm glad there's people out there thinking, "hang on a minute" when situations like this arise and take the time to consider if they should take action on it. Good on you, OP.

[PrincessMouse]

Statutory Entitlements
The entitlements below, unless otherwise detailed, relate to the 2015/2016 tax year.

National Minimum Wage (NMW)
From 1st October 2015 the National Minimum Wage rates are:
Age of employee Hourly minimum wage (gross)
21 or above £6.70
Between 18 and 20 £5.30
Between 16 and 17 £3.87
Non-family members living in the employer’s home who share in the work and leisure activities, are treated as one of the family and aren’t charged for meals or accommodation, e.g. au-pairs are excluded from the National Minimum Wage.

Redundancy Pay Entitlement
Your employee will be entitled to redundancy pay if at the point of being made redundant they have been employed by you for a minimum of 2 years.
The amount of redundancy pay due to them depends on their age and weekly pay amount.
Employee Age Redundancy Pay due per full year of employment
Between 18 and 21 Half a week’s pay or £225, whichever is lower
Between 22 and 40 One week’s pay or £450, whichever is lower
41 or Above One and a half week’s pay or £675, whichever is lower
We urge all NannyPaye clients to call our office for further assistance on accurately calculating Redundancy Pay.

Statutory Maternity Pay (SMP)
If your employee earns over £112 per week gross and was working for you before they fell pregnant, there is a good chance that they will be eligible for SMP. SMP is funded by HMRC so it not a cost to you as the employer, however, you do have to facilitate the payments to your employee. The first 6 weeks of SMP are paid at 90% of average gross weekly earnings. The remaining weeks of the maternity pay period (up to a maximum of 33 weeks) are paid at the rate of £139.58 gross per week, or 90% of average gross weekly earnings, whichever is lower.

Statutory Sick Pay (SSP)
If your employee earns over £112 per week gross they will be eligible for SSP if they fall ill. Consecutive days absent from work up to three days are unpaid, SSP then becomes payable from the fourth consecutive day of illness. SSP is paid at £88.45 gross per week, to calculate the daily rate of SSP, you should divide this figure by the number of days that your employee works for you per week.

Student Loan Recovery
If your employee has a student loan and they are earning £17,335 gross per year (£1444 gross per month, £333 gross per week) or more, student loan repayments must be deducted from their gross salary at a rate of 9%.

www.nannypaye.co.uk/useful-information/statutory-entitlements/

[AnnekaRice]

Slavery Act 2015 [[http://www.legislation.gov.uk/ukpga/2015/30/contents/enacted]]?

[AnnekaRice]

sorry link fail Modern Slavery Act 2015