Dishonest mothers help or am I to blame?

[Newmama2222]

Hired “mothers help” on a temp basis. We agreed on self employment. After being sick she is now requesting almost full pay for the days she was sick ,hol pay and pretending we agreed she’d be an employee. She’s been sending her hrs at the end of each week and I’ve been paying net with no deductions.
i am not against setting her up as an employee / worker but I now feel I’m lacking in trusting her as she’s been taking the over payments under the agreement she’d do her own taxes and now is pretending she thought I would do these my end on top. She’s also pressuring me to pay her almost full wage for the days she’s had off this week. She is already employed by another family and I know full well she was working there FT while not with me this week. Feel like I’m being taken for a ride AIBU?

Thanks everyone, she has another family who employ her, so she told me her avail and that’s what it is. She often leaves early to get to her other family, before the end of the agreed session, and the length of session has changed now and again depending on when she’s wrapped or if she has something else to get to.
Her CV and messages told me £21 per hour gross, she followed up on text to tell me this and is now claiming she understood I would be paying her over this plus covering her taxes NI etc. so basically over £30 an hour which is not what was agreed ever and is extremely unrealistic for the job. I had to stop her doing laundry as she doesn’t even separate whites darks and colours but she’s otherwise organised.
she doesn’t invoice but she sends me her hours at the end of each week. When I checked HMRC CeST tool it was inconclusive. What I do not like is that she agreed so much verbally and is now writing to me changing the story, it makes me question her credibility and has eroded my trust. I am in a rented flat and a few elements have been damaged, that were not me and no one else was in the house. When I ask her I’m met with “no idea” and now I’m certain that’s a lie.
She never gave me her P45/NI number or any thing as she was going to be self employed. Now she’s pretending as if we always agreed she would be added to pay roll etc and is asking me to pay her full days for her 4 missed sessions this week due to sickness and to cover her holiday in a few weeks, I don’t even think she’d be eligible for that if she was an employee! She’d get statutory sickness and maybe one holiday day covered. I feel very weird about the whole thing but have a bad feeling if I end the contract now she will do something nasty to get back. I’d be happy to end here and draw a line under it but I’m not convinced she will. I will check with HMRC and I’m also waiting on advice from nanny tax. A very odd situation all round

The OP has absolutely broken the law here. Do you not realise, OP, that everything you are saying are what a people trafficker/ modern slaver would say?
People can work what hours they choose if they are self employed. If you have ever, once, told her what hours she needs to work for you, you are falling foul of the law, and evading pension and Employer’s Nat Ins.

She is taking the piss, definitely get rid of her.

Eh? Modern slavery and trafficking? I am a freelance marketing director and I work set hours by the company 9am-6pm. I don’t demand sick or holiday pay bc I am freelance. How is this different?

Why did you not do a contract? Anyway with no contract she can’t ask for anything and you can end employment immediately. She has no comeback. I wouldn’t trust her near your kids. I’ve men a nanny and always had a contract.

She said £21 gross? Why did you give her £21 per hour? Gross is before deductions.

Because she thought the nanny was doing her own tax return.

@Newmama2222 Give the nanny the option of either sorting out her own tax deductions from the gross amount paid to her, or if you are currently employing others, offer to add her to the payroll but she’ll need to return the overpaid amount to the cover PAYE.

OP you’re in a bit of a tricky situation, in the sense of it’s usually unacceptable to have a self employed nanny. However, there are exceptions to this that perhaps you fit into.

Having said that, as you have no contract or anything I expect that it’s a bit of her word v yours and nothings actually legit.

You could say she hasn’t filed a self employed tax return, she could say you haven’t done her paye so it’s your word v hers. In all honesty given that this hasn’t been going on long you’re best just texting her and saying it isn’t working out. She’s unlikely to pursue anything, and if she does, HMRC will not care enough to do anything for the amount it is for.

If they do take issue it will probably be with her in the sense of, you should have reported this earlier and not just now it’s not suiting you to be paid cash in hand.

The worst thing I can imagine happening is you’d be ordered to cover the tax and NI (but I’d find this super unlikely) and if so then it’s not the end of the world to cover it after only a short amount of time. The last thing you want is to let it continue and escalate to the point where you would be paying an awful lot.

Overall you’ve both done some things you shouldn’t have done but I do think you can end it now and think lesson learned for next time

She is NOT an employee
The poster is not doing anything wrong paying cash any one can pay for any service on cash that isn’t a crime but what is a crime is the recipient receiving this and not declaring it so doesn’t pay tax or NI
She isn’t entitled to any holiday or sick pay as she is self employed. She should have insurance and also a UTR number .

This

Id email it or text it so you have proof

It sounds like your employer isn't employing you actually. You're not on PAYE?

OP you are not following tax employment rules, she can't be self employed for you. I suspect she has found this out.

I do hope you mean you have paid her gross and that you have been very careful about her slef employed status - this is why you should have used an agency for her payroll. It is a complex area when you have an employee working only for you as they can't really be self employed and HMRC are coming down hard on this area.

She will be able to say you told her she was self employed, as legally she should have been. Which means she can claim sick leave, annual leave and you will have to pay her tax and NI. This could be an expensive lesson for you.

Not sure about the legitimacy/legalities of your particular arrangement, but honestly it sounds very messy and, if the trust has gone, I’d be looking to end the arrangement rather than formalise it further.

You can’t necessarily just agree between yourselves that she is self-employed – employment/tax status depends on the reality of the working arrangement. If HMRC considers her an employee, you could potentially be liable for PAYE/NI and possibly interest or penalties, so I’d get proper advice on that fairly urgently rather than continuing as you are.

I’m also slightly confused by the Nannytax point. Are you already subscribed to them? We use them for our nanny and it’s a paid payroll/HR service, with the HR advice included as part of the subscription, are you sure they're going to advise you if you’re not actually a client?

On the sick pay, anything beyond statutory entitlement is discretionary in our nanny’s arrangement; there isn’t an automatic entitlement to almost full wages just because she was off sick. And if she told you she was too unwell to nanny for you but was actually working full-time doing the same job for another family on those days, I’d be asking her to explain that before paying anything discretionary. Depending on the facts, dishonesty around sickness absence could potentially become a serious disciplinary issue.

Personally I’d stop trying to patch this arrangement up and get proper payroll/employment advice now, establish what her actual employment status has been, sort out anything that needs correcting with HMRC, and then end the arrangement properly if that’s what you decide. Continuing informally when you already know there may be an employment-status issue could leave you in a worse position.

Speak to citizen advice and even chat gpt to make sure you know the regulations. Leave anything in writing, and tell her you are speaking about this to a lawyer to see where your/her rights stand. See her reactions.

I don't think she has a case as you are paying gross, hence she pays taxes, hence she's self employed.

No contract, no clarity.

And sack her as soon as possible.

@Newmama2222 No wonder you're confused. It sounds as though your employer & you are also breaking employment law. Self employed status isn't decided by simply agreeing that you're not going to have holiday or sick pay.

Do you have a contract yourself? Do you provide your own equipment? Do you have the opportunity to work for others or to send someone instead of you? or was it simply an opportunity for the company you are working for to avoid mat pay, dependent's leave & similar obligations. Do they apply IR35 rules?

She's either untrustworthy or very confused. You have messages confirming that her pay is gross so she won't be suing you. But you need to draw up a contract now saying what your arrangement is, and both sign it, or terminate the arrangement .

You are only freelance if you work for at least one other employer as well. Otherwise you and your employer are breaking the law and you need to get on their payroll asap.

Not entirely true @Morecoffeeneedef, but if I was either party's accountant, I would be crawling all over the OP's quasi employment situation.

Whatever you do - stop trying to patch this and fire her now.
A childminder is £85 per day 8-6pm and a decent cleaner is £20 ph.

Check your contract (surely theres a probationary period) get advice and withhold payment until resolved.
I'd seek proof from the other family on days worked.
If you have a ring camera you can document the early departures.
If you behave it in writing you are paying her gross i am not sure she has a case.

Please do not use ChatGPT for legal stuff. Almost every time I’ve used it to check things, it gets the law wrong.

Id text her back with your understanding

"Hi, we agreed you were working with me on a self employed basis. That you were working full time elsewhere so would be able to offer X hours to me a week at gross pay of £21 an hour.

I have in keeping with that paid you your gross amount of £21 for the hours you have worked. I am not paying you for hours you did not work.

Additionally, I have concerns about our continued working relationship. And will no longer require your services."

Then id report to HMRC, she may very well have worked with you so little she doesn't face consequences on this occasion but id do it anyway

You absolutely should not continue to have this woman in your home.

Last time I looked into it, that was the law. Has it changed? I had to go on a company's payroll when I went up to 4 days a week freelance, because they were afraid I would have them as my only client at some point, and they would be in trouble.

Working exclusively for one client and having that client dictate your hours can be evidence that the person isn't genuinely self-employed. But neither factor automatically makes them an employee, and it certainly doesn't automatically mean the person has broken the law or is committing modern slavery.

It can make it a grey area about their employee status though and something OP needs to look at immediately because I have a feeling this woman isn’t going to be entirely honest.