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!

I'm glad you are bothered about this, OP. So many of the recent slavery cases involve people who have been treated like that for years, and I think people just turn a blind eye because its easier or because they can't believe that someone who works with them can be abusive.

I think what they are doing is illegal. For a worker not living as an au pair, the minimum wage is valid, minus an offset amount as someone said above. This offset amount is limited. If I thought someone was being abused, i would report it to the Crimestoppers anonymously. They will refer it for investigation. The attitude of everyone keeping themselves to themselves means that exploitation can be covered up. This nanny could well be prisoner in the house, and you would feel awful if later on it came out that she was treated like a slave and you had turned a blind eye. I'd rather be interfering than let something like this happen.

I am going to have a chat with the acquaintance either on wed or Thursday when I next see her. I will ask for a bit more info and explain my concerns, probably positioning it as though I am concerned that acquaintance is at risk of breaking the law. In reality my sympathy is elsewhere.

Here's the exemption. I suspect it couldn't be applied to a full-time nanny.

www.legislation.gov.uk/uksi/1999/584/regulation/2/made

General interpretative provisions

(2) In these Regulations “work” does not include work (of whatever description) relating to the employer’s family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied.

(a)The conditions to be satisfied under this sub-paragraph are–

(i)that the worker resides in the family home of the employer for whom he works,

(ii)that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;

(iii)that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and

(iv)that, had the work been done by a member of the employer’s family, it would not be treated as being performed under a worker’s contract or as being work because the conditions in sub-paragraph (b) would be satisfied.

(b)The conditions to be satisfied under this sub-paragraph are–

(i)that the worker is a member of the employer’s family,

(ii)that the worker resides in the family home of the employer,

(iii)that the worker shares in the tasks and activities of the family,

and that the work is done in that context.

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.

totally agree with the above, and im a nanny - no nmw for live in but £100 is waaaaaaaaaaaaaaaaaay under the typical live in - so makes you womder why the 'nanny' does this, tho £400 in hand may be a lot compared to where she lives

To quote another poster, I think it is dodgy as hell too. This very fuzzy grey area around live-in help with children. I think there are many exploited au pairs too and so many parents seem to think they can employ an au pair full time while they go to work! It's shocking.

I would have thought a full time Nanny should be earning minimum £20,000 pa, more like £35,000 in London, and paying £100 - £150 (again, based on where living) board and lodging per week.

£100 pw "pocket money" absolutely does not sound enough when you look at it like that.

Blonds
live ins Should to paid NMW - you can make some deductions for board and lodging but they still need to be paid NMW.
Info GOV.UK HERE

She's not really part of the family though is she? Family members, aside from children are equals. If she's taking orders and doesn't have the final say in what's done, then she is an employee.

It doesn't matter if she's happy, it doesn't make the law any less the law. She'd be much happier if she was paid a fair wage where she could leave if she wanted. With that low of a wage, she's essentially trapped there. You don't take advantage of desperate people.

Unless laws have changed live in nannies don't have to be paid nmw

They should be - everyone should be nmw or above / but sadly it happens often

I'd call a spade a spade. It's exploitation pure and simple. This nanny is not working au pair hours. It sounds like they need two for that sort of cover

A FT live in nanny earns somewhere in the region of £300 to £450 a week NET in London on top of their room and board.

I'd be highly surprised if she is registered for tax and NI by the family, or is receiving any form of au pair type language classes etc.

The nanny may be happy to suck it up for a few months to a year until she gets UK reference able experience, and improves her English. Then she'll be off if she has any sense.

Blondes. Live in nannies DO have to be paid minimum wage. Employers can make limited adjustments for board and lodging but they absolutely do have to be paid NMW

When did this change ? As I've seen lots of jobs advertised for say £300 nett so about £360 gross and 5 days and 11/12hrs so 55/60 a week and works out under nmw

Blondes they could be term time only or vary hours between holidays and term so that over a year they average out ok.

And as I said upthread they can be slightly below NMW although for the life of me I can't find what the limit is.

(Sorry)

60h/w at 80p under NMW is about £350 gross. So the numbers are ok.

European working time directive otoh. ..

If the employer is providing accommodation then they can offset a certain amount up to £37.45 a week. Anything else such as food or a mobile or whatever can count towards the minimum wage.

So you can feed your nanny caviar and champagne and give her use of a rolls Royce but you still have to pay her minimum wage.

I'm not very good at explaining this but if you google minimum wage and live in employees on the GOV.UK.COM site there are some examples which make it easier to understand.

It's not up to employers to decide what is reasonable pay even if their employees are happy with the arrangements .

From the example given by Blondes

£360 divided by 55 = 6.55 (which is just below minimum wage)

If the employer provides free accommodation they can offset £37.45 a week which brings the nannies hourly pay to 6.55 plus 0.68 = 7.23 ( which is above the NMW)

There is a minimum wage calculator on the GOV.UK website which does this for you.

Exploitation is illegal isnt it ? This woman is oncall 24/7 does she get paid holidays time off or is she working all the hours there is in a day

In the case of the OPs friend her adjusted pay works out at £3.39 per hour.

The OPs friend owes the nanny an extra £132.44 a week. Presuming she doesn't meet the criteria of an au pair which I don't think she does.

OPillocks, I don't think taking money for board and lodging is unreasonable though, and you have classed it as 'free'.

No, you've misunderstood my 'tone', I agree that having 'free' accommodation is part of the nannies 'package' . If you look at the gov.uk site on minimum wage it uses the term 'free' too even though the accommodation is being counted towards the national minimum wage.

However, employers can't try to get around the NMW requirement by charging what they like for accommodation.

As I said earlier I'm not great at explaining this and it's best to look at the GOV.Uk site. My main point though is that nannies must be paid NMW even if they are live in. Au pair (genuine au pairs!) do not have to be paid NMW.

When did this change ? As I've seen lots of jobs advertised for say £300 nett so about £360 gross and 5 days and 11/12hrs so 55/60 a week and works out under nmw

I think the key point here is that the au pair/nanny appears to be working above 55/60 hours a week.

From Childcare.co.uk
Au Pair or Au Pair Plus, what’s the difference?

An Au Pair or Au Pair plus is a foreign young person who travels to the UK to experience British culture and learn a foreign language. Usually, and Au Pair or Au Pair Plus is not considered to be an employee or paid worker.

The main difference between and Au Pair and an Au Pair Plus is the number of hours that can be worked and the pocket money to be paid. An Au Pair Plus can work 31 to 35 hours and earn between £90 and £120 per week versus the 25 to 30 hours and £70 to £90 per week that you can expect from an Au Pair. It is also worth noting that Romanian and Bulgarian Au Pairs may not work more than 25 hours per week.

www.theguardian.com/money/2014/oct/18/au-pairs-on-a-pittance-young-women-minding-kids

OP - legally, your friend or colleague cannot employ this woman as an au pair, she has to be classified as a nanny. WHICH MAKES IT EXPLOITATION.
www.aupairinbritain.com/page/visa-advice

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.
They don't need a professional qualification unless you want to claim childcare vouchers in which case they need to be Ofsted registered and suitably qualified. Most parents prefer some form of qualification and emergency medical training certification for example. Age is irrelevant.

Working at least 40 hours pw, although I suspect more given the comments about getting up in the night.
A FT nanny would usually [in London] work a minimum of a 10 hour day from 8am to 6pm. This is often longer though sometimes offset with hours off during the day if the children are school age.

Presumably you could pay NMW and offset a reasonable amount for board and bed? Is this right?
Yes. This is correct but there are thresholds. You can't claim market rent for example.

Employers would usually pay for the public liability insurance, not the nanny. Nanny insurance is often paid by the family but is not transferable
www.nannytax.co.uk/additional-services/nanny-insurance

www.nannytax.co.uk/images/PDFs/NT-2014_WSAR_V1.pdf

Salary survey for live in and live out nannies.

Update. I have spoken to acquaintance and raised my concerns. She was a bit defensive / dismissive ("DH checked that all out") and said they paid for English lessons too. I said I was worried that the nanny might leave them once she realized how much she could get elsewhere, plus talked about the Modern slavery Act and domestic servitude. She said she would check again with her DH because she wasn't in on the details.

To be honest, I don't feel any comfort at all from this. I have discussed the matter with a third party and we are not going to let this go.

I appreciate all the advice on the thread.

Good for you, in not letting it go I mean.

It's difficult - for many families even very high earners the cost of childcare is prohibitive and it's not uncommon at all to see au pairs given sole charge of a small non-verbal child and lip service to "language lessons". There's a common attitude of "everyone does it" in some sectors.

Sadly it's a huge area the government [and preceding ones] are doing very little to help with other than to tinker around the edges.

OP have you thought about the impact on the nanny? Thrown out of her home just before Christmas? Or is this all about how you feel about what your 'aquaintance' is 'not' paying for child care?