Nanny self employed or contract?

[Pomigra]

Hello all,
Having previously hired a nanny with whom things did not work out and having finally managed to settle issues with her and terminate her contract I am now back in the position where I need to hire a new nanny and I'm actually scarred.

I would like any thoughts on if its better to ask the new candidate to be self employed and just have an agreement as to working hours , holiday etc? Any thoughts?

If indeed a contract is the best way to continue and I have to do that then is it possible to have a TERMED contract ie one year and at the end of it I can end the contract if I want to without any comebacks, even if I hire someone else to do the same job?

Any advice is much appreciated.

in answer to your first question, a nanny cannot be self-employed.

Nannies have to be employed unless they only provide ad hoc temporary care such as a maternity nany provides.

others may tell you differently and there are lots of self employed nannies around but you as their "employer" run the risk of having to pay thousands in back pay natinal insurance/tax if you are caught.

There are a list of criteria for self employment (it is the job not the person it goes on) and nannying does not fulfill the requirements.

With regarsd to a contract once a person has worked for more than 12 months they get full employment rights whether a contract is fixed term or not. You can make them redundant but then cannot fill the position with someone else.

It is possible to do so before they have worked for you for 12 months as long as they can not claim sex or race discrimination.

You have no choice but to make it under a contract of employment, assuming you are talking about having a full-time or part-time nanny who is coming to your home, at times which you have decided they will come.

A fixed term contract I think is possible but if you continue to employ them after that fixed term it becomes permanent. I believe you would still have all the usual employer obligations under a fixed term contract. so I'm not sure as to why you would want to do a fixed term contract. A normal contract can be terminated for any reason during the first 12 months, by giving notice as specified in the contract (statutory minimum notice is 1 week).

In general if someone is self employed it would be normal for them to provide their own contract. A verbal agreement is a contract anyway but better if things are written down for both parties whether employed or self employed. But as other have said it will be your liablitiy if the nanny is not very temporary/ working ad hoc hours.

thanks for the advise everyone. the reason i was thinking of having a termed contract is that if things are not working out then at least at the end of the term i don't have to continue the employment. but from above it seems that not the case. i cannot hire someone else at the end of the contract. is that right?

with my previous nanny we didn't get on on a personal level. i found her arrogant, dishonest and stressful to have in the house. several times breaking down in tears at her behaviour but it seems i could not fire her for that without evidence. it seems to be almost impossible to get out of a contract with a nanny if you simply don't like her quality of work. is that correct?

You have 12 months before employment rights kick in -apart from discrimination - so I would imagine that you would know before then if its not working out - you could make clear there is a probationary period as well

Because of my bad experience with our first nanny, I've put a probationary period in the contract for our new nanny. It's standard in other contracts, and says that both parties can terminate the contract with a week's notice (or pay in lieu) during a specified probationary period. After that the notice period becomes one month. There are also details of what would be considered cause for disciplinary action or dismissal.

"With regarsd to a contract once a person has worked for more than 12 months they get full employment rights whether a contract is fixed term or not. You can make them redundant but then cannot fill the position with someone else."

This statement is contrary to what I have heard. Although, I am no lawyer, so if you are a lawyer you may know more than i do. But I thought contract could be fixed to certain time (not limited to 12 months but also couldn't go on and on for years) or it could be fixed to a certain event (i.e. when Johnny starts school full time).

I can think of an advantage to the employer. If you hire a nanny, two months into the job she announces she is pregnant. Now you are looking at all that goes with maternity rights and pay. You will obviously have to provide maternity rights. But, when the fixed term expires (say 12 months), then the contract ends and you do not need to hold her job and pay an inflated rate for a temp nanny until new mum decides to return. So, it get you out of 12 month of inflate dnanny rates.

Some may say this is not fair to the nanny. But, to that, I would say asking working parents to cover all these costs and the associated taxes just so they can go to work is unfair to the parents.

I have always written a fixed term contract. I have never once used it to end the position. Just as I have always written SSP only into the contract, and have never once not paid a sick day in full.

I think you can hire someone else at the end of a fixed term contract. But I am not qualified to give that advice in an official copacity so perhaps you might want to ask a lawyer this one.

Some more credible info here (more credible than mine): www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026692

i cannot hire someone else at the end of the contract. is that right?

In any contract you can hire someone else at any point, as long as you are not making the previous person redundant. If after they have been with you for more than a year, then you would need to follow disciplinary procedure to dismiss them.
Some example procedures.

In year 1 you can terminate (by giving notice, or paying notice) without giving a reason at all.

I feel you are over complicating things... a long probation period, plus being able to terminate the contract without giving a reason during year 1, plus disciplinary procedures after that, should really be sufficient in the event that things do not work out.

You could well have a 3 or 4 month probation period... that would then be like having them for a term.

You can also write a detailed Gross Misconduct section - laying out exactly what things you consider would be grounds for immediate dismissal.

with my previous nanny we didn't get on on a personal level. i found her arrogant, dishonest and stressful to have in the house.

How long after they started did you realise things were not working out?

What if you really like the nanny and it comes to the end of their fixed term contract?

I think you can then do another fixed contract. But after a while I think it becomes continuous employment.

DirectGov:Fixed Term Contracts - worth a read... covers many things you are talking about. Fixed term contract becomes permanent after 4 years.

i would say about 5 months into it things started to fall apart and my about 7 months it was unbearable. she told me she was pregnant about 2 weeks after she joined. she said she didn't know. ofcourse she took tons of time off due to her appointments and when my child was sick.
At 5months i felt couldn't dismiss her as i felt that was her aim ..... to create a sex discrimination case against me. i think she planned it all out very carefully that is why i'm so scarred of this whole situation now.

If someone is maternity leave when a fixed term contract ends, it could be automatically unfair dismissal.

See PersonalToday: Maternity Leave (bottom of page)

Looks to me that the thing to keep in mind about fixed term contracts is that the non-renewal of a fixed-term contract is a dismissal.

If you decide to go the fixed term contract route... get someone who knows employment law well to write the contract - seek professional advice.

Hire a bloke next time

Seriously though, the chance of someone planning something out that like against you I feel is very low. You seem to have been very unlucky to find that after a very short time your nanny announced they were pregnant.

Nick, that link just says that you can't not renew her contract because of the pregnancy (i.e. you can't say the job was not offered to her because she was unavailable because she was on maternity leave). But, you can offer the job to someone else for a wide variety of valid reasons... say you now require a nanny who speaks Latin, or one who plays football, or a million other valid reasons.

As it happens I tend to hire au pairs / nannies who want to come to England to brush up on their English for about a year anyway. So it is generally by mutual agreement that they stay for exactly one year.

I agree with Nick's point about having a thorough disiplinary and gross misconduct section. And, you should be quite vigilant about enforcing it in the first year. This probably does far more to protect you that writing in a fixed term.

OP - I think you should be spending A LOT more time thinking about what you need to do differently during the recruitment process for your new nanny rather than stressing about how to potentially dismiss her if it does't work out again! Seriously - this will be a much more productive use of your time.

Actually op, apart from the dishonesty - which does need to be proved - the rest of your former nanny's behaviour is very much capable of having her dismissed. As long as you give her verbal notice that you find the behaviour inappropriate, then follow with the written warnings etc, she can be dismissed. As an employee in the house her job is to make things easier for you, if she doesn't, then she's not doing her job properly. You just have to be very thorough with your paperwork!!!!

No ChitChattingaway, dishonesty does not have to be proved, and you do not need a disciplinary paper trail in order to dismiss someone fairly from an employment with less than 12 months service.

Mr A, if you're worried about a case of unfair discrimination due to pregnancy you do - the 1 year rule doesn't apply!!!!

Ok, saying dishonesty has to be proved may not be quite right, but dishonesty must be genuinely believed with some firm examples. It is much easier to tackle attitude such as arrogance. If you are spoken to in an arrogant way by the nanny, you can pull them up on it straight away, and if it doesn't change you can document it. If they are causing you stress, you can document why - eg jobs not being done as asked, DC not being taken to outings as requested, rooms left messy, etc, etc. Dishonesty, if it's your gut instinct is a bit harder to put down on paper.

No, that is a gross oversimplification. Any adequate explanation of the requirements for a successful defence against a claim for unlawful dismissal due to pregnancy is beyond the scope of a Mumsnet forum and I don't think it is a good idea to post an inadequate explanation.

Can I butt in with a quick supplementary question about employment/self-employed nannies?
I am planning to have someone who is otherwise self-employed as a personal trainer (her own business, does her books etc) for a day a week. She wants to declare that on her self assessment so would like to be paid gross by me.
Where do I stand legally on this?

Nannies aren't supposed to be self employed. Even only working 1 day a week for you she should be your employee.

However, if it's only 1 day a week and the amount is under the tax and NI allowance (£137 I think) then you probably wouldn't have to run the employment through PAYE - therefore no tax taken out and no NI paid - and then your nanny would just have to declare those earnings in addition to her other self-employed earnings and then pay tax on them. (This is only if you are her primary employer though).

So whilst technically she is still your employee, you would effectively run it as though she were self employed.

I would double check this first though!!!

MrA - simply stating that no paper trail is required if employment is under 1 year is not necessarily the best advice - because there are circumstances of automatic unfairness even where employed for less than 1 year. Yes, getting legal advice would be essential - but it is far better to have that paper trail (to show that dismissal has nothing to do with pregnancy/parental leave/race,sex, age discrimination or the many other categories of automatic unfair dismissal).

CC, thanks for your help - shall I phone the tax people's 'employers helpline'? Is that the right place to check?

You might get HMRC to agree that this is self employment, you would need to call the Employment Status Team rather than the new employer help line.

She will actually be better off as an employee though - if you are only employing her for one day a week there will be little or no NI to pay, but as self employed she has to pay 9% NI (assuming she does actually declare it of course).

So if you are going to employ her and pay her more than £102 per week you will have to register as an employer.

If you pay her less than this you will still have to get her to confirm that she has no other employment (the easiest way to do this is to ask her to complete and sign a P46 form. If she ticks box A or B you are OK, if she ticks box C you will need to register for PAYE (and deduct tax at the basic rate from everything you pay).