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Can a nanny ever be self-employed??

(10 Posts)
PacificDogwood Fri 16-Sep-11 22:17:21

I have read about the definition of self-employed vs employed (own 'tool' vs employer's toys tools; sets own hours vs employed determines hours; potentially several clients rather than one employer etc) and I fully expected any future nanny we might have to be employed by us. Which is a bit of a new experience to me as we have had a CM to date, but I am learning. On a steep learning curve...

We have been interviewing several applicants this week one of which seems to be head and shoulders above the rest (20+ years experience as a nanny) who told us she was registered with the Care Commision (or whatever they are now called) and with the Inland Revenue and that she has worked as a self-employed nanny and is happy to do so with us.

It is very tempting.

But is that right?? I really don't want her or us to land in any kind of trouble with the Tax Man over this just because I am apprehensive about becoming an employer.

Any advice gratefully received.

annh Fri 16-Sep-11 23:29:02

It's not up to her to decide her employment status in this situation. If she will be working for you for fixed hours on fixed days per week then she will not meet the requirements for self-employment. If she is only going to do odd days with you and the choice of whether to work for you on a particular day is hers,then she probably could be self-employed. She may well have been able to be self-employed for temporRy or short-term positions in the past but it is you, as the employer, who will be fined if you are found to be in breach of the regulations.

nannynick Sat 17-Sep-11 09:14:36

Can you describe what they would be doing for you, in particular:
What hours, what days, if you require them to come each time you request them to come, if they can have a friend of theirs meet with you and then that friend come instead of them?

mollymole Sat 17-Sep-11 09:46:51

another way at looking at is that the Revenue have been know to use in determining true self-employment is

if he/she/they are unavailable then they are within their (self-employed) rights to send some one else (equally qualified) on their behalf to carry out the work they are contracted to do

PacificDogwood Sat 17-Sep-11 09:50:28

Thank you both, that's what I thought.
No, she most certainly cannot chose the days she'd work for me (my hours are very fixed) and I would not be happy for somebody else to step in.

We have seen 8 candidates this week with another couple this weekend, but really want/need to make a decision soon.

What does confused me is the fact that my CM is self-employed and does work from her own home, but only 'choses' her own hours in that she agreed to work for the hours I needed her IYSWIM. It does seem to be a bit of a minefield and like I said, the last thing I'd want to do is come acropper with the Inland Revenue <<wibble>>

NickNacks Sat 17-Sep-11 09:53:52

mollymole ....although that last statement doesn't apply to CM's and we are self employed. If I'm ill (or holiday or ML) I can't insist they use my back up CM, can I? <not sure so this is a genuine question>

mollymole Sat 17-Sep-11 10:17:26

if you put into your contract that you will arrange for the back up cover of an equally qualified person then you should be covered unless the parents opt out of this clause

NickNacks Sat 17-Sep-11 10:50:37

Oh ok. I don't think i'd do this anyway as if i'm ill the last thing i wan't to do is plough through a list of back ups to see who has spaces that day. Thanks.

RitaMorgan Sat 17-Sep-11 10:59:55

I am a self employed nanny at the moment. I work for a few different people - they ask me for the days they need, I tell them if I can do it basically. It works well for people who are shift workers and also use another provider (CM or nursery) but sometimes end up having to work on days that aren't covered by the other provider iyswim. Also good for me as I can just say I can't work on Tuesday, it's my son's birthday/I'm taking the cat to the vet/I've had a better offer.

mranchovy Sat 17-Sep-11 11:29:49

This thread has gone a bit astray into childminding, so to clear a couple of things up:

There are many factors that determine whether any partticular situation is employment or self-employment: see here for HMRC's view, although a court may well take a different view. mollymole mentions one factor (known as the 'right of subsitution') which used to be a very popular way of avoiding employment, but this is now looked upon more strictly by HMRC (for instance if a IT freelancer's contract says she can send someone else along to do her job but in reality that is never going to happen, HMRC will ignore the alleged right of substitution).

But childminders are definately not employees - the key difference is that you pay them to look after your kids, but they are free to also look after other kids at the same time. This is such a strong indicator of self employment they don't need a right of substitution (although some do in fact have one as molly says). So don't worry NickNacks, you don't need to have this in your contract if you don't want to.

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