Need to let the nanny go - no contract but feel obliged - help

[AngelaD]

She's such a nice girl but doesn't really help in that she has a sports car so can only have or pick up one of my three children.
I've not had any formal agreement in place at all and i would like to keep her as a babysitter, any advice ???

DOH get her a car

or let her use yours?

am sure it would not be fair to her to sack her unless you specified she had to provide transport when you interviewd her

Is the tranpsort the only issue?

do you only employ a nanny that has a MPV then .

Hmmm. A bit tricky.

Not having a contract doesn't help. Actually, I'm not sure it's legal, but that aside, writing the contract helps you to formalise exactly what is and is not expected as part of the job, especially as a lot of standard Nanny contracts you can find on the interweb cover stuff like transport and everything would be clear.

I've been in a similar situation, in that a Nanny has claimed she had a car at interview, but what she actually meant was that she intended to buy a car when she could afford one by saving out of her wages - most of which she spent on the weekends. In the end she bought a car which had passed its MOT but would not, imo, have been safe in a crash. Had your Nanny set such an expectation? Eg, at interview did she say she had her own car for the job, even though it was clear you had 2 or 3 children to transport? If so, I think it's reasonable to ask her what her plans are to resolve this. If it wasn't discussed, then it's difficult. Maybe a good way to approach it is to sit down with her and work out what a contract would look like if you renegotiated at this stage - explain why the transport thing is such an issue and perhaps there can be some give and take/renegotiation of terms? Maybe she can do some extra hours or take a nominal pay cut to cover wear and tear on a car if you could supply one. Or maybe she has access to another car herself if she really thinks about it - eg perhaps could swap cars with her boyfriend during the day?

Mandieb - providing a car if you don't have a spare one knocking around is a HUGE issue. Nannies often assume that having a car is an automatic perk but actually it's either a family car (in which case, the responsibility of looking after it is a burden - the hassle and trauma when my current Nanny reversed my car at top speed into our very solid hedge cannot be believed) or it has to be bought specifically which is a huge financial outlay if you've not planned for it.

So why is the nanny expected to provide a car that is big enough to transport three children surely the boss should have thought of this at the interview.

I'm sure you know this but not having a contract makes no difference to her basic employment rights. In fact at tribunal it could be a point in her favour. She has a right to one w/in 2 months of starting work. Once she has been with you a month she has a right to notice of dismissal btw.

Sorry if I'm being dense but how can your average nanny afford a safe car to seat 3 kids? Do most nannies have such a car? We'd like 3 kids but the cost of a safe car for 3 kids, plus insurance, tax etc, is nearly enough to put us off-and we earn more than a nanny. Plus of course she'd need to be insured for busines use.

If you sack her are there other candidates? Just can't believe there are lots of good nannies around with safe 5 seaters!

If she's good with the kids-isn't it better to just give her the family car and manage without or something?

umm, isn't this the one you were advertising as a nanny share last week? Sounds like you need to think through what you really want before you make any hasty decisions?

Taking legal points first:

If the nanny has been with you for more than two calendar months, you are in breach of the Employment Rights Act 1996 - you nanny can take legal action against you.
Details about Written Statements
Without this in place, the nanny will retain all her/his statutory employment rights - such as a notice period upon termination.

If your origional advertisment DID NOT state that you required someone with a vechile suitable for transporting 3 children... then I do not feel you are able to dismiss your nanny on this basis.
If you had asked for a driver with a car - that, I'm afraid to say is what you have!

The easiest thing to do, if you have a car available, is to put the nanny on your insurance - then the nanny can drive your car. You would of course need to then go to work using another form of transport - perhaps you could swap cars with the nanny (if you can get insurance on a sports car).

Most importantly for everyone whose nanny is using their own car to transport your kids: they are not insured unless they have insured themselves for business use!!! If they crash and -god forbid- one of your children is injured, their insurers will not pay out on a normal private motor policy. If you employ a nanny with his or her own car, you should inspect the vehicle for seatbelts, MOT and business insurance. If they are doing the job properly, they will then want to charge you a proper milage rate to cover their expenses. Would you want your child in a poorly maintained or uninsured vehicle?

Well I can't afford to buy her a car, not to mention tax and insure it.
She is actually self employed under the new registration scheme so no legal implications from what i can see but i think a months notice is fair and shall do that, thanks for your help.
And if anyone needs a nanny in chester, she is lovely.

I could be wrong and please tell me if I am but I didnt think nannies could be self employed .

My understanding is that they can be self-employed if they work as temps, ie going from family to family. Though even so it is risky, and when we had a temp we deducted as if she was an employee and left her and the IR to sort it out at the end of the year.

A nanny employed full-time counts as a "domestic" and it is illegal to consider them self-employed. (I think this is because of the loophole where unsrupulous employers co-erce their domestic staff into declaring themselves "self-employed" to avoid paying NI and tax and then when the employee gets sick for instance they have no NI contributions to fall back on.) I don't think the Nanny registration thing affects this in any way. If you have not, so far, been paying her tax and NI as an employer, the IR will come after you for it if they find out. Onus, both in terms of collecting these contributions and in following employment law, is on the employer, ie you.

I know Nick recommended nannypaye, but nannytax does, as part of its service, a very good template contract and allegedly free legal advice; I've not had to use it though even the payroll people were quite up on it when I phoned them. Might be worth going into this a bit more before you employ your next Nanny - unfortunately, there seems no short cut, you have to be a "proper" legal employer, with payslips and contracts etc - though actually once you have your head round it it's all pretty easy and it does save you both from nasty surprises from the revenue and misunderstandings such as your problem with the car.

AngelaD, Can she get round to pick up / drop off your kids on public transport? My nanny is Canadian and doesn't fancy driving on the "wrong" side of the road. If my DD gets into the nursery of my choice (atached to the primary of my choice) then nanny will take her to school (with DS in tow) on the bus every day.

TBH without the car situation being resolved (and neither of us can afford a new car) I simply cannot justify the cost, she is just looking after my 2 year old for 6 hours a day and then we all sit and watch the older two do their homework and chat for another 2 hours because I feel guilty that she could be doing a full day somewhere else so I keep her for 8 hours.
Here is the scheme that she is registered under so she is like a mobile childminder
www.childcareapprovalscheme.co.uk/parents/index.asp

Approved Childcarer's are Nannies - they care for the child at the child's home. Nannies are Employees under employment law. They may on very very rare occasions be exceptions, though employment status is based on each job, individually and I doubt very much that a nanny working an 8 hour day, 5 days per week, is anything other than Employed - she doens't have time for other work, does she? The Status Officer at you local tax office can confirm the correct employment status should you require confirmation of status.

If you want detailed information about the definition of a nanny, then I wrote a large amount today on NannyJob messageboard (Thread: PANN) regarding how the Children Act sees nannies and why they can't register as a childminder.

As it appears you have decided to part company with your nanny, would I be right in assuming that you will be makeing her Redundant.

But surley if she made her redundant that would cost her even more money .

No offense, AngelaD, but if you can't afford to either put the nanny on your insurance and have her use your car, arrange for her to use public transport to collect your kids or pay a nanny mileage+ to use her own car, then can you really afford a nanny?

AngelaD, how long have you had this nanny? Making her redundant won't cost you a penny if she has worked for you for less than 2 years (if I remember correctly). But, as you don't appear to have hired her as an employee in the first place (and I know not if your arrangement is legal -- and I will not give you a hard time on this subject), I don't see that you should have to make her redundant anyway.

If you get rid of the nanny, what are you going to do for childcare?

Feel free to CAT me if you like. I'm happy to talk on e-mail as well.

If she has been with you for less than 1 year, then you may be in luck...

Looking at dismissal procedures, it looks as though you DO NOT have to give her a reason for no longer requiring her services. NOTE: She MUST NOT be pregnant!

If she has been with you for longer than One Month, but less than One Year, then give her a weeks notice. I would suggest paying her in lieu of notice, so she has that week to look for new employment.

But, Nick, this person is not her employee. I suppose we could debate whether or not she should be. So redundancy and dismissal and whether or not this woman is pregnant is irrelevant.

For all we know, this person may have worked there on contract for two weeks.

It is very unlikely that it would be legal for the nanny to be self employed.... (exceptions are where contract are very short (like temp / emergancy nannies/ maternity nurses) or where nannies are working for more than 2 (or 3, not quite sure exactly) families at the same time.

Even if she says she is self employed.... they EMPLOYER can be fined £3000 for not declaring they are employing a nanny... because employers are also legally obliged to pay employers national insurance contributions which you are obviously NOT paying....

anyway that aside you surely cannot seriously be thinking about sacking the nanny because of the car she drives? we nannies are people too, and if we want a sports car or a clapped out old banger (that is insured / MOTed etc) then there is not alot you as employers can do about it...

either get the nanny a car that you are happy for her to ferry your children around in, or make other alternative arangements!

If you do make this girl redunadnt and then employ someone else i woudl be very careful.... if their is no good reason to make her redundant (and im sure in a court her own personal car would not be considered a good reason to sack her!) If you employed someone else (as i assume you would) im sure she could take you to a tribunal.... even if the arrangements change .... hours / pay etc, you are still obliged to offer her the job first...

if she has been with you less than 2 years you dont need to pay redundancy pay, and im sure the minumum notice period is 2 weeks (cause thats whats in my contract) until you have been there 2 years then a weeks notice for every year you have worked up to a maximum of 12 weeks)

The onus is on the employer to provide a contract within 2 months of starting work, so im sure If it came to it everything would be on her side, and then the £3000 fine may come into it as well.

So i dont know what to suggest... be VERY careful about letting her go and then employing someone else... as she could see you in court and would probably win

I personally have my car and with no air bag in the front so i can take 3 children.... i cant fit 3 child seats in the back and will only ever take children in car seats (got no intention of killing / injuring someone elses child just cause a car seat dont fit) have 2 charges at the moment... IF my boss has another baby thats fine.... the option will be never to travel with any of their friends, (maybe leave one at grannies etc) OR they can get me a new car, but I refuse to travel with children not in car seats so that will be it! (and im buisness insured (obvioulsy) and it costs me less than a fiver a year, so it is NOT expensive!)

We odn't actually know whether AngelaD should or shouldn't be an employer to this nanny. However, we do know that she in fact isn't because she said so.

Also, the rule on redundancy (which is not relevant to this thread because AngelaD's nanny is not an employee -- perhaps she should be, but she isn't)is 4 weeks notice unless otherwise noted in your contract. So, NannyL, your contract says 2 weeks so that they can let you go faster if they want to.

I think that we are being a bit hard on AngelaD. If she has done something wrong here, it sounds as though it was not knowingly. So I really think we should lighten up. And again we do not know enough about the situation to pass judgement.

This is a place for support. Can we not beat her up?

AngelaD, technically you should be employing your nanny, she is not a mobile childminder - there is no such thing in the eyes of the Inland Revenue. For tax & NI purposes you are her employer and if they catch up with your nanny, then it will be you that they claim tax & NI back from because you should have been employing her. Just because she is CRB registered, does not make her eligible to be self-employed.
Given that you should actually be her employer, I am not sure how the law would stand with regard to you making her redundant. A lack of contract works against you, rather than for you because as an employer it is your responsibility to provide one.
I would be tempted to seek some legal advice.

So, what id AngelaD has been paying her in cash? Nobody is going to prove anything then, are they?

It's all fine and good for everyone to get on their moral ground. But, after the way AngelaD has been taked to on here, do you really think she is going to come back for more?

She can't affor dher nanny, and she is probably going to terminate the agreement, whatever that may be.