Live out nanny contract

[MNmum]

I've hired a live out nanny for the first time (previously only had live in) - she's working part time for me and three other families and she is paid by the hour (double if she works anything on bank holidays). She is self-employed and pays her own taxes (I've seen her hmrc and ofsted papers and as far as I can tell it is all correct).

Now I need to provide her with a contract but don't know how it should differ from the contracts I've previously used for live in, full time nannies that I've employed and been responsible for taxes for. Is it the same just adjusted for being a part time role? I've tried asking the lady but she's very shy and just says "I'm sure I'll be happy w whatever you suggest". I don't want to take advantage of her but also don't want to be taken advantage of (I doubt she'd tell me if I offered something that was way better than market standard).

For example, is she entitled to holiday and holiday pay from me? I've promised her that if we go away on holiday without her I will pay her the money she would earn during a normal week but it feels strange to me that someone who is self-employed could take out holiday and be paid during it.

Any input you have would be gratefully received.

Hi there. Rather than just change "full time" to "part time" in past contracts you've used, draw up a new Contractor/Self-employed contract. Find one on the internet and adjust it accordingly.

As a self-employed person she is not entitled to holiday pay, stat mat pay, sickness pay etc. She is paid for the hours she works. By all means include a clause about entitlement to pay when you are away on holiday without her but I wouldn't bother - just keep that as a spoken rule.

If she is self employed I would expect the nanny to be providing you with a contract setting out her terms and conditions.

For someone to be legally classified as self employed they have to be allowed to decide for themselves when, where and how much work to do, and are at liberty to subcontract any part of the work to someone else if they choose to. If you are asking the nanny to do set hours which are convenient for your work commitments, and would not be happy for her to choose to send her sister or friend on any day she doesn't fancy working then your nanny is an employee and has employment rights.

www.nannytax.co.uk/employment-law/self-employment

Agree with nbee - I have been a contractor and provided my own contract mostly (one time it was a big firm and they had a standard one, so we used that)

If she works for several families, haven't they already got something you could use?

thanks everyone. That's helpful, will sit down and talk to her about it properly. Agree that she should be able to give me a contract, don't know why I didn't think of that myself.

Mitokarikovo - I didn't know the rule about subcontracting, I assumed that it was enough that she was registered as self-employed with HMRC and not just working for me. Will read up on this more, thanks for mentioning it.

Go through the Employment Status Indicator with her, it may well be the case that for some of the work she is self employed but for others she is not.

The fact that you are being asked to provide a contract is indicative that you are to be their employer. If they are self employed, they provide you with their terms.

You must not give them a contract if you will not be doing PAYE (deducting taxes from their pay). It will be very messy if you provide employment rights but then don't do payroll.

If you are providing fairly set hours of work, then have them as your employee.
If they are more a babysitter, doing occasional work as and when with no commitment, then they could be self employed for that but they don't get employment rights, no contract.

HMRC may have issued them with a UTR but that does not mean they can be self employed for all work they do. If the ESI does not help determine status and if they insist on being self employed, write to HMRC for a status decision to protect yourself from the large fine that can occur if you get the decision wrong.

www.gov.uk/guidance/employment-status-indicator

If you determine that she is your employee and you do then provide a contract and do payroll, then holiday for part-time employees is the same as for full-time.

5.6 weeks x days worked per week

So a full time employee gets 5.6x5=28 days and someone working 3 days gets 5.6x3=16.8 days.

This is inclusive of bank holidays. When a bank holiday occurs and if you don't need them to work that day, then they take it off as annual leave and you deduct that day from their holiday entitlement.
When a bank holiday occurs on a day they don't work, it makes no deduction to holiday entitlement as they would be off that day anyway.

If she does the same days for you every week and she can't change these days, she can't send someone else in her place and you choose where she works then she is unlikely to be SE for the purposes of your job and you will face all the penalties if HMRC find out.

self employed nannies are those who you ring and say "i need a nanny next week for two days, are you free?" on an ad hoc basis, not those who come to you regularly every week for the same days.

You say she is paid by the hour, so is she like a babysitter who you say "I would like 10am-1pm this Friday are you able to help?" or are you defining the working hours much more clearly than that? Could you give an example of a typical month?

You have had a nanny before, you have done the payroll stuff before, so why is this situation any different - what makes if different? Part-time does not make it different in terms of employer responsibilities.

I've promised her that if we go away on holiday without her I will pay her the money she would earn during a normal week

that would compromise her SE status. if you are SE you generally get no holiday pay.

As others have said if she is se she provides the contract with her t&c

Is she doing set days and hours with you?

If yes she can't be SE in your job but can be SE with others if she decides the hours /says no I can't do that

Thanks all. Hours is set in the sense that we both expect her to work the same two days per week and then work full time those days however I've agreed that if her other families need to swap their days or need her to work extra then that's fine as long as I have a weeks notice. So in one sense she can call me and say that she won't come to work the hours I've offered her. But I wouldn't accept that she sends someone else instead and based on your comments I guess that is enough to make her an employee. Really appreciate the help everyone

we both expect her to work the same two days per week and then work full time those days

if in doubt then ask HMRC and get them to put their advice in writing. but sounds employed.

Yes sounds employed

But that's fine

She can be employed in your job and SE in others