Are live-in nannies entitled to the same minimum wage as live out?

[Mamabols]

Just a general question as I'm getting mixed information from varying sources

Many thanks

No. In fact, there is no minimum wage for a live-in employee.

Though there is mention of accomodation offset, so it isn't that clear.

What has prompted the question? Is a nanny moaning about the salary on offer?

That depends firstly on your location.

In the UK: if it's separate accommodation or if the nanny isn't allowed full use if household amenities then they are entitled to minimum wage but if they're living with the family with all facilities, food etc provided then generally they aren't.

What fraktious said. I've had it confirmed with an employer lawyer.

Thanks for your replies.

nannynick, it's my husband's accountant, who's going to be helping with payroll, who is insisting that all employees are supposed to be paid minimum wage, including live-in nannies

Perhaps ask the accountant how it works for live-in staff. Would be interested in knowing what the accountant answers.

It's possibly a grey area as I'm not sure there is anything that specifically says a live-in staff member is exempt from NMW. Anyone know documents that do say that?

BusinessLink: Benefits in kind and accommodation - reading that, I think your accountant could well be right in that the only thing you can deduct from NMW is the weekly maximum accommodation offset of £32.27

See Example 2 which could well be similar to a live-in nannies situation.

However PAYEforNannies says that "residential nannies are not covered by the minimum wage regulations" but they don't provide a link to the section of legislation or any official document that states that.

Think a hunt through NMW legislation is needed - anyone done that already and knows which section makes a residential nanny exempt?

Smith v Oxford Learning Disability Trust about someone doing overnight sleep in on-call work.

National Minimum Wage Act 1998 - 44A
This is about Religious and other communities. Is a private household considered to be "other communities"?

The National Minimum Wage Regulations 1999 - Workers who do not qualify for the national minimum wage.

It's late, so I may not be reading things right but I have yet to see where a live-in domestic worker is excluded from NMW. Can anyone point out which bit(s) of legislation would apply?

Not sure if UKEAT/0304/06/MAA (.doc) will be of any help or not. Possibly not detailed enough to be able to work out how they got to the pay figure for the NMW claim.

'Living in your employer?s household
If you are a member of your employer?s family, live in their home and help run a family business or help with household chores, you are not entitled to the National Minimum Wage if you share in the family?s tasks and activities.
If you are not a member of your employer?s family but you live in their home and share in the household?s work and leisure activities, for example if you are an au pair, you are not entitled to the National Minimum Wage.'

I just go by Direct.gov. Apparently use of TV and Internet plus any other leisure amenities counts as sharing in leisure activities.

No reference on that DirectGov page from what I can see to the actual wording of the legislation. What for example is "family's tasks and activities". Does a nanny share in the household's leisure activities?
Also at what point does the line get drawn... some nannies may have accommodation that whist being part of the family home can be considered to be self-contained, such as the nanny has their own bathroom and kitchen.

The kitchen/bathroom is an interesting one. I think the line is very blurred there. Separate entrance is definitely not counted as live in.

Household tasks - washing up, laundry, taking bins/recycling out - a nanny tends to do many of those even if just on the children's behalf and their own, but it contributes to the running of the household. It would be tricky to sort the rubbish separately or exclude parental items from the dishwasher.

Leisure - what do many people do? TV, Internet, if you had gym membership they were on, sharing a meal...Where it gets very tricky is if such things are offered, e.g. sharing a meal, but the nanny doesn't want to.

[http://www.legislation.gov.uk/uksi/1999/584/regulation/2/made National Minimum Wage Regulations 1999 s2(2)a]

Now the drafting of this legislation is IMHO not very good, and some parts could definately lead to a challenge by a nanny (particularly (2)(a)(ii) regarding 'leisure activities') but I am not aware that any such case has come to court.

(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.

National Minimum Wage Regulations 1999 s2(2)a

It is my understanding that there one of the lines is drawn when the nanny lives in accommodation that has it's own electricity/water supply. If not, then it is part of the family home. If it does have independent utilities (regardless of who pays the bills) then the £32 (appx) deductions and NMW rules apply.

Mamabols - does any of that help you at all? Probably worth pointing out section 2(a) of National Minimum Wage Regulations 1999 to the accountant, and making sure that your nanny is using a room in your main accommodation, not any annex or separate building, plus that you involve your nanny in some family leisure activities from time to time.

I thought the distinction was drawn at whether or not the nanny and the family share a front door. So if you buil an apartment on top of your house and give it its own front door, then that is separate accommodation (and a benefit in kind). But if she has a bedroom upstairs where all the other bedrooms are, then she is live-in and not subject to min wage.

If this is not true, there are an awful lot of au pair / nanny employers in a whole lot of deep shit.

Whilst not NMW related, TV Licensing mentions on their website about the possibility that a lodger may need a separate TV licence if they have "exclusive access to a toilet or washing facilities."

Seems a bit hard to know when accommodation is considered to be separate to the main home.

Thank you. All very helpful. I'll pass the information on to the accountant :) It'll be a room in the main house with all utilities paid so that should cover it, I hope.