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help...laywers please, we've messed up with nanny stuff!!

(34 Posts)
whatnow Fri 23-Feb-07 21:14:57

we have been very very stupid and employed a very experienced nanny who said she was self employed and would pay her own tax and NI.

Now she is going to be off sick for god knows how long and i was looking around on t'net to see how we organised sick pay for her etc.


It seems that we have have been employing her illegally as we are liable for her tax and NI and she is not registered.

i am not sure what she is expecting, we had said that we would pay her 2 weeks full pay and then stat sick pay when we wrote down what we had agreed at the beginning of her employment, but i really don't know how she will get stat sick pay..

if she hasn't been payhing tax and NI we are stuffed big style
and if she has we are still stuffed because WE haven't been paying it IYSWIM.

and how can we pay her AND somebody else to look after the kids when she is off sick??

aghhhh , what now?
are we really stuffed??

whatnow Fri 23-Feb-07 21:20:46

bump please!!

Whoooosh Fri 23-Feb-07 21:28:22

If she is not live in,then as I understand it,she can be self employed.....NannyNick is your best bet on this or maybe Eleusis.

whatnow Fri 23-Feb-07 21:41:29

thanks, will try to alert them, what a bloody mess

ChicPea Fri 23-Feb-07 21:52:21

How long have you employed her? I employed a nanny but didn't know the score as it were and just thought I could ring NannyWage and tell them the amts and dates and then they would organise what I should pay. They did but as I did it four months after she started I was fined by the Inland Rev. Nannies can't be self-employed and you are liable for their tax and ni. Why not say to her that you have made enquiries and she can't be self-employed and how does she suggest you resolve it? See what she says and then see if you want to pay her tax from when she started and then decide on her sick pay. Good luck.

ChicPea Fri 23-Feb-07 21:53:28

A nanny could be self-employed if it is a temp job but depends how long. Also they have to show a certificate of self-employment or a letter from their accountant to prove this.

somersetmum Fri 23-Feb-07 21:57:24

If she is employed by you, then you as the employer are liable to pay the Statutory Sick Pay. If her earnings average over £84 per week in the eight weeks before she became sick, then you are liable to pay her £70.05 statutory sick pay (rising in April
) for a period of twenty eight weeks.

whatnow Fri 23-Feb-07 22:03:18

OMG i have been soo stupid.
How much did they fine you, ChickPea?

I ahve had the shitist week ever, ds1 was in hospital earlier this week, and i was just about to resign work today and giver her 1 month's notice, when she calls me home, goes to the drs and then tells me she needs surgery

and now if i resign and give her ehr notice it looks like i am sacking her because she is ill

I feel so sick...i was looking forward to staying home with the kids, and now it looks like i will be fined by tax office, pay her sick pay and have to employ another nanny....
we just can't afford it
really, we can't

Ladymuck Fri 23-Feb-07 22:03:40

I think that you need to break this down into 3 separate problems:-

1) the fact that you haven't been deducting PAYE and NI

2) what, if anything you need to do about sick pay

3) what you are going to do for the future whilst your nanny is ill.

Item 2 and to some degree 3 will be dictated by the terms of your contract with your nanny. This should specify what amount of sick pay, if any, the nanny would be entitled to. In general, if the expectation on both times was that the contract was one of self-employment, then you would not have to pay sick pay. [A contract which otherwise would appear to be one of self-employment can be deemed as a contract of employment for PAYE and NI purposes, but it doesn't automatically give you all the responsibilities of being an employer].

Item 3 - again what does your contract say, and how exactly how long is she likely to be off sick. If you don't have to pay her presumably you could get some short term cover?

Back to item 1:- depending on how long you've employed her I would phone the Inland Revenue Small Employer helpline and talk to them. But if we are talking years rather than months I would get a solicitor first.

Judy1234 Fri 23-Feb-07 22:04:05

Even temporary workers are usually employees actually.

You wrote down at teh start that you would pay her 2 weeks full pay and then SSP but SSP doesn't apply to the self employed.

Is she going to be off for a long time? If so would you consider getting rid of her immediately? If she is not an employee as she is saying and is worried that if she suggests otherwise she'll get done for a load of back tax she might just accept it. Did you put a period of notice in what you agreed with her at teh start?

whatnow Fri 23-Feb-07 22:05:18

you see, iu am so glad to have changed my name here.....we don't have a contract as such <crawls off feeling like a real thicko>

whatnow Fri 23-Feb-07 22:07:25

Xenia, we agreed a month's notice, and as you can see by my Xpost, i was just about to resign as i want to stay hoe for the next cple of years- it really wans't working out that i was working and I wasn't able to resign today because i had to coem home to look after the kids [bewildered and freaked out emoticon]

Judy1234 Fri 23-Feb-07 22:12:13

Might be harder then to say she was self employed. People spend a lot of time writing contracts so they look like someone is self employed not an employee (even then it doesn't often work).

Could you give her a month's pay tomorrow and a notice of termination of her self employment - saying something like - as you know we agreed at the start a month's notice for her provision of services on a self employed basis to you and unfortunately you now need to give notice. Here is the cheque and she does not need to work the notice period. And then that's that.

Or do you think she would go with less of a pay off? You could say as she is not employed ( going along with that although I think she was) that as she cannot perform the services and you will have to pay someone else you have no choice but immediately to terminate the contract. That might not be so wise.

whatnow Fri 23-Feb-07 22:19:41

but i haven't resigned yet and will need somebody to look after the kids whilst i work my notice.
i am not sure when her surgery will be, it is semi urgent, so she will be notified when it is required.
Qithout going into detail it may be that she will be ok for a while, but conversely emergency surgery can also be necessary for this condition if it deteriorates quickly.

And i would worry about how it would seem to terminate our arrangement now- enev though i was honestly just about to...it just feels so mercenary...
i know- it is a hard world etc... but i know she struggles for cash sometimes and have subbed her often.

i would be mortified if we get sharfted by her- it would be unwitting on her behalf and due to sheer stupidity on ours.

thanks for help so far anwyway

ChicPea Fri 23-Feb-07 22:32:27

Ho wlong have you employed her for? And SSP is paid for by the government... the payroll company just deduct what she is owed from the tax and ni you owe. I was fined a percentage so maybe 1 or 2%. Not much but who wants to pay extra to the Inland Rev?

oops Fri 23-Feb-07 22:35:56

Message withdrawn

oops Fri 23-Feb-07 22:36:44

Message withdrawn

ChicPea Fri 23-Feb-07 22:43:59

Don't worry, nobody is going to track you down! YOu could ring the Inland Rev Customer Services anonymously from a phone box and have a frank conversation with them. I think the 1-2% was the gross amount from when she started to when she was about to finish.I employed her from the Sept and then she left at the end of January. You could also ring NannyTax or NannyWage (anonymously) and ask them the sort of charges involved on what you have paid her. How have you paid her sick pay in the past, has it been full sick pay or ssp as I think ssp is about £10-£12 per day. How much do you pay her per week and I wonder if what you pay her could be her gross and not her net so you owe less tax and ni?

ChicPea Fri 23-Feb-07 22:46:16

Also, say you pay her £300 per week, as you thought she was self-employed, this was a gross amount not a net amount so maybe you could argue (and I don't know) that as the amount was gross you can take the tax out of future earnings ? Also how did you find out that she is not self-employed?

ChicPea Fri 23-Feb-07 22:47:58

Also, what nationality is she? Alot of nannies want their tax and ni paid and when they find out that their employer hasn't paid it (usually at the time of resignation) they don't report them, they just learn from it and move on to the next job but ask pertinent questions at the interview. Depends on the nanny though.

oops Fri 23-Feb-07 22:48:18

Message withdrawn

somersetmum Fri 23-Feb-07 22:52:13

SSP is NOT paid by the Government. It used to be, but that changed a good few years ago. It is a statutory right, so it has to be paid, provided that the employee satisfies the earnings rule and is not excluded for any other reason (things like being arrested, working outside of the EU etc). The employer is liable to pay it.

SMP (Maternity Pay) is paid by the Government; SSP (Sick Pay) is not.

Aloha Fri 23-Feb-07 22:53:01

Sounds to me like you are panicking so much you are imagining all sorts of dire consequences that are really not remotely likely. What does she expect to happen? Do you think she would complain to IR? Loads of people pay cash in hand for childcare tbh. You have only employed her for less than a year and now she is redundant because you are stopping work. Tell her that you are giving up work so you are very sad but you won't need her any more and either pay her a month's salary or negotiate with her. You aren't going to prison!

Soapbox Fri 23-Feb-07 22:56:23

Somersetmum - I thought that for small employers the govt refunded the cost of SSP?

Oops - you do sound in a bit of a mess here. I think you could do with spending a (relatively) small amount of money and sign up with nannytax who have a legal help line - they should be able to help you find a way through this mess.

I would make it clear to nanny though, that you will effectively be making the deductions from her gross pay!

ChicPea Fri 23-Feb-07 22:59:50

If that amount is gross then try and stick to exactly that. However, when you are self-employed you don't get sick pay. Can you call her and ask her when she expects to return to work etc but not sound defensive and sound kind and caring so that you don't start some sort of fall out? I would still ring nanny tax or inland rev anonymously and get their view on it. I shall try and dig out paperwork on this nanny if I still have it and see how much I was charged. I really didn't like her (for various reasons) so may have thrown the lot to get rid of the irritating memories. I do sympathise but please don't worry, it will all blow over. You could claim that the £90 was a gross amount per day as I said before so the £9,500 includes tax. I would imagine as being self-employed that you pay less tax so it is in her interest to pay her own tax rather than you deduct it as she will end up with less. Maybe have a conversation about it so taht she says she will pay the tax and whether she pays it or not, at least you won't have to. Get her to sign something before you pay her last week's/month's wages? Please don't worry, its only aggravation not cancer. You will get through it.

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