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Nanny rights without contract? Notice period?

(9 Posts)
lilmisstarlight Fri 03-Dec-10 22:58:35

Hi guys,

I have been a regular lurker over the past few months but this is my first post so apologies if I do something wrong!

okay, so some background, I am a fully qualified childcarer who has over 18 years experience but not as a nanny. This year after being made redundant I turned my hand to nannying as its a nanny's market in my area at the moment.

I have now been nannying for the past three months for a family (live out) who pay my tax and NI etc through Nannytax which I insisted upon. However despite my constant requests, I have yet to be given a contract or statement of employment.

I have now decided to leave the family as they have made no effort to create a contract and as a result seem to think that they can change my hours whenever they feel like it (the other day MB rung an hour after she had left the house saying 'Oh i forgot to say you need to work an extra 3hrs tonight!'(this was not due to snow which i would have understood). They are also constantly late at paying me/pay me less than they should etc and I have just had enough (there are other reasons which I won't go into now)!

So anyway I have a few questions about what my rights are in relation to me leaving and I hope you experienced parents/nannies will be able to help me with them!

I have found a new position which starts at the end of Jan.

1.Do i still have to give a notice period without having signed a contract or statement of employment? or does the 'verbal contract' mean that I legally have to give one week's notice?(I am wary of giving notice only for the family to turn around and not pay me for my final week/month which they have recently done to their cleaner shock)

2. The family are also refusing to pay me for the upcoming Bank Holidays (I work M,W,F)-is this legal? (the nannytax site suggests not?)

3.How much holiday am I entitled to/ have I accrued? I am aware that I am entitled to 16.8 days for the year-do I just divided this by 12 months then multiply this by 4 (the months I will have worked by Jan)giving me 5.6 days?

4.What will happen if the family do not give me my P45 if i do leave without notice? can they legally withhold this?

I appreciate that questions 2 and 3 rely on a contract for proof etc but I just want to have a better idea of my rights before arguing them with the family.

Thanks in advance for any help/advice you can give me and sorry this post's so long!

nanny7 Fri 03-Dec-10 23:29:16

Hi, Iam not 100% sure but heres my thoughts..
If you have no contract then I wouldn't have tthought you have any leagal obligations to them.
Sorry to say this but that means you wouldn't also be entitled to any holiday(sorry)
As regards to bank hols, this should be in your contract!! some employers feel that just because their work days are mondays and Fridays they shouldn't have to pay out, as it cuts in to holday pay!!!(believe me I have been there)
If I were you, I would hand in notice and go for other job..though make sure you've signed a contract before with new family!! hope this helps. good luck

juneybean Fri 03-Dec-10 23:47:03

I'll have to disagree with nanny7, as they're paying you via nannytax you are employed by them (i.e. if they paid you cash they could turn around and say you weren't employed) and you are entitled to holiday pay in line with how you have worked it out, have you had no holidays / bank hols since January?

They cannot legally withhold your P45 they have to give you a statement of earnings, I believe you can report them to HMRC / IR

nannynick Fri 03-Dec-10 23:58:46

ACAS - Notice "After one month's employment, you must give your employer at least one week's notice; this minimum is unaffected by longer service."

Notice should always be given in writing. Keep a copy of the letter for your records indicating the date on which you gave it to your employer.

There is no right to paid time off on bank holidays. See BusinessLink: Pay and Time off on public holidays

Holiday Pay - See: BusinessLink: Holiday pay on termination

With regard to the P45 - you don't need it to start a new job. Instead complete a P46. However if you don't get the P45 you could call Nannytax and ask them... they may not deal with you as they are contracted to your employer... but it's worth a try. The P45 won't be able to be generated until the final payroll run is done. So I would suggest starting off by completing a P46 for your new employer and then if you get a P45 later on, your new employer can then pass that P45 on to their payroll operator.
Note: There are many other payroll companies out there than nannytax, which will cost the employer LESS. So if your next employer asks about payroll providers, please do tell them about other providers so they can decide what level fees they are happy to pay for a payroll service.

At end of financial year, you should get a P60 from your former employer. So keep their contact details to hand, plus payroll information, so you can chase that up in May.

nannynick Sat 04-Dec-10 00:09:49

You say they use NannyTax yet they have not given you a Written Statement (contract). NannyTax provide one of those don't they? So not sure why your employer hasn't done that yet.

>'Oh i forgot to say you need to work an extra 3hrs tonight!'
That is not on at all, so I can see why you are unhappy.

>They are also constantly late at paying me/pay me less than they should etc

Yet you say they use NannyTax, so you get a payslip... so are you saying the pay you get is different to the payslip... or are you saying that the payslip is wrong (such as not the right number of hours)? Note: Payslips are often prepared at a certain point in the month, so hours worked after a certain date won't be on that months payslip but get added to the following month.

Have you told your employer that you are unhappy? If they are hard to pin down to talk to, have you written them a letter?
Things don't seem to be working out but it is best to try to leave as amicably as possible, so do try to communicate with your employer.

mranchovy Sat 04-Dec-10 00:37:42

You do have a contract, it is just not written down. This contract includes 'implied terms' which apply to both you and your employer, and in addition you have certain rights given to you by statute (laws enacted by the state).

To answer your questions:

1. A contract would usually specify a notice period, the minimum notice an employer may legally give an employee with between 1 month and 2 years service is one week. There is no legal minimum notice from an employee to an employer, but there is an implied term of reasonable notice which is usually interpreted as one week.

If you are concerned that on handing in your notice they will not pay you any more, why not hand your notice in once you have been paid for December? If this doesn't work because you need to start you new job in January then you will need to hand it in earlier though.

Cleaners are self-employed and it is not as easy for them to successfully sue a customer as it is for an employee to sue an employer. If they do withold any pay, go to ACAS and they will explain how to take them to an Employment Tribunal, and help you draft a letter to them warning them of your intention to do that. If you have payslips there is no question of them denying that you were an employee, and if they used Nannytax presumably you have payslips?

2. You are entitled to be paid for your normal days of employment, including any holiday days (which may include bank holidays). As there is no written contract to specify exactly how holiday works, it needs to be assumed in this case that bank holidays that fall on your normal working days come out of your annual holiday entitlement and they must pay you for them.

3. Your calculations are correct, assuming you work from the beginning of September to the end of December. 27th December is a bank holiday, so you will have had one day of your annual minimum entitlement, leaving 4.6 days to be paid.

4. They should give you a P45 but this is an obligation between them and HMRC, you have no legal recourse if they do not. If they are using nannytax, they will produce one for you and there is nothing to be gained for your employer in withholding it.

If you don't have it when you start your new job you will have to fill in a P46 form which will result in you paying slightly too much tax if you have not earned £6,745 so far this year but this can be sorted out later.

mranchovy Sat 04-Dec-10 00:47:14

Cross-post. Looks like we are saying the same thing, except on pay for the bank holiday. What that link says Nick is that you have no right to (paid) time off on a bank holiday, meaning that an employer can require you to work on a bank holiday. But if they require you not to work they still have to pay you and can deduct the day from your annual holiday entitlement. The exception to this would be if you have a contract which says that you are paid by the day not by the week or month and that bank holidays are not normal working days.

lilmisstarlight Sat 04-Dec-10 06:30:29

Thank for all your replies- I knew you'd be the rightpeople to ask! grin

juneybean-I have only worked for them for 3 and a half months and have not taken any holiday as yet.

nannynick- yes nannytax do provide a contract but i was told MB/DB wanted to spend time personalising it. (they know I am not happy to still be waiting for this, I ask for the contract at least once a week and have stated my other concerns to them, but they simply apologise and then do the same thing again!).

I have only had one payslip so far as they set up nannytax late (and only after much insitance from me)and I am still awaiting this month's.

They do not pay me the correct amount when I do overtime (which is often sprung on me at the last minute and is averaging 2.5-3 hours a week at the moment).I also use my own car for work and am constantly having to chase them for the 40p mileage that they have agreed to pay-i am currently waiting for three weeks' worth! (I keep a detailed log as you advise nannynick and present this to them every friday as they stated a interview that they would pay this weekly).

mranchovy-thank you for the further clarification about bank holidays (we did discuss these at inteview and I was told I would not be required to work them but would be paid and now they are saying that I am not entitled to be paid. I will explain that I am happy to work them but if they do not want me to, then they should pay as it is a legal entitlement.)

The only issue with handing my notice in after dec pay would be the fact that I will be working up until the end of Jan and therefore will possibly work for a month to then be not paid at the end of it.

However, I don't think i will be able to prove that i had worked the month of January to an employment tribunal if they did not pay me as then wouldn't have a payslip. Is there a way I could prove it??

Or maybe I could hand in my notice after jan's pay and state that I will be using my accrued holiday to cover a week's notice period? (threfore only potentially losing one week's pay). I know that they would be able to find cover at short notice as both MB and DB are self employed and live near family.

However this is likely to result in me leaving on bad terms (which i would rather have avoided) but I do not need a reference from them as I have already signed a contract for my new position (not as a nanny but thanks for the the advice about cheaper payroll companies nannynick) and at the moment I feel that they are not willing to adhere to they're agreements with me so why should I make their lives easier!

Its so tricky to know what to do for the best! confused

IWantToBeAFairyWhenIGrowUp Sat 04-Dec-10 06:44:42

Can you hand in a weeks notice after you've been paid in December and have a few weeks off before starting your new job.

They are taking the piss big time

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