If I employ a nanny on term-time only basis do I pay her for bank holidays?

[SE13Mummy]

As title suggests, I'm struggling to work out how to deal with bank holidays...

We have found a wonderful nanny who will be working 3 days a week, term-time only. If statutory holiday entitlement is 28 days plus bank holidays then presumably she's entitled to ((5.6 x 0.6)x0.75)x5 i.e. 12.5 days but what about the bank holidays? Only one of the bank holidays falls within a school term (the first one in May) so do I just pay her for 13.5 days of holiday?

Also, what would be the best method of spreading the holiday pay? Does it make most sense to divide the 13.5 days holiday pay by the 39 weeks that she works for us and pay a portion of it each week or a lump sum at the end of each term?

Any advice would be much appreciated.

Complicated for me at this time of night . I would say that the May bank holiday should come out of her holiday entitlement. I would think that dividing the holiday entitlement between the 39 weeks that she works is the bast option, as if she does leave part way through a year you have not under/over paid holiday.

best

Statutory entitlement is 28 days INCLUDING bank holidays.

There is no such thing as holiday pay any more (not in this situation anyway): you need to actually give her time off, in other words pay her for days that she takes as holiday). This also means that the 0.75 factor in your formula is wrong because you will pay her for more than 39 weeks out of 52 (because of the extra holiday days, during which she accrues further holiday).

How about you pay her for 15 weeks each term, so the first 2 weeks of each school holiday she is paid. She then has 6 weeks holiday, the equivalent of a full time 22 days plus bank holidays which is 2 days more than the statutory minimun - not too generous I feel.

With May day you could either require her to work as normal (you don't have to give bank holidays off, as long as you make this clear in the contract) or just give her the day off, depending on your requirements and whether you feel 22 days FTE holiday is generous or not.

Thank you both. I must confess to being slightly confused by the whole idea of accruing holiday whilst on holiday but that's probably because I'm a teacher; we don't accrue any entitlement to anything whilst we're off,

I obviously need to come up with a new formula that takes account of accruing things but also that bank holidays are included in the entitlement. I must say I'm a bit at the jump from 13.5 days to 22!

I don't think you do accrue holidays whilst you are not working. Have a look here and scroll down to term time only workers.

Thanks for the link! That makes it look as though our nanny should be getting 14 days holiday which is much closer to what I'd first worked out.

We don't need her to work the May bank holiday (our schools will be closed anyway).

No it's not 14 days it's 16.8 - here is the calculation done in the way that site does it:

Step one: multiply your weekly contracted days by the number of weeks you work:

3 days x 39 weeks = 117 working days for the year

Step two: calculate the average days you work each week by dividing your days for the year by 46.4 (which is 52 weeks in the year minus the 5.6 weeks you would be on holiday and so not working to accrue annual leave):

117 / 46.4 = 2.52

Step three: multiply your average working week by the holiday allowance:

3 days x 5.6 weeks = 16.8 working days' holiday allowance a year

I suggested 6 weeks at 3 days a week, so 18 days which is, as I pointed out, a bit more than the 16.8 days statutory minimum - in fact it is 3/5 x 2 days more than than the statutory minimum, so for the full time equivalent it would be 30 days, or 22 days plus 8 days bank holidays. This is what I meant when I mentioned the 22 days - sorry if the way I said this made it unclear that this was a full time equivalent, not the number of days you should give for this part-time position.

• correction coming up

correction definitely needed

16.8 days holiday is what I get for working a 3 day week all year round.

I'm looking forward to the correction... before I had this baby I also had a brain. I've been off work too long now and my brain power is deteriorating

Here is the calculation done in the way that site does it:

Step one: multiply your weekly contracted days by the number of weeks you work:

3 days x 39 weeks = 117 working days for the year

Step two: calculate the average days you work each week by dividing your days for the year by 46.4 (which is 52 weeks in the year minus the 5.6 weeks you would be on holiday and so not working to accrue annual leave):

117 / 46.4 = 2.52

Step three: multiply your average working week by the holiday allowance:

2.52 days x 5.6 weeks = 14.12 working days' holiday allowance a year

Note that you cannot round this down to 14 days, so how about you pay an extra week and a half each term to give 3 x 1.5 x 3 days = 13.5 days plus May Day to give 14.5 days in total?

I can't believe I tried to round it down - the 10/11 year olds that I teach are always being subjected to me telling them to use their commonsense when it comes to rounding things like this (actually more likely to be the number of buses required to take X children on a trip etc.)! How embarrassing

Thank you though!

Sorry, I can't believe that I made the same mistake twice. As nbee84 said, 16.8 days is the minimum for 3 days a week all year and the fact that I ended up recommending 6 weeks holiday which is more than the 5.6 weeks for full time should have made it obvious. 4.5 weeks makes much more sense.

Can I use the excuse that I have a rotten cold?

Does it matter though when the holiday is?

Reason I ask is that when I did term time only, taking holiday during term time was not an option, so essentially the holiday entitlement was added on to my working academic year. This was before the 5.6 week rule thing came in.
Pay was split over 12 months, so there were times when I was working far more than I was getting paid to work, as it were. Then there were times such as Summer holidays, when I was paid but didn't work.

If you are splitting payroll into 12 monthly payments, then when then holiday element is taken doesn't make any difference does it? The thing to do is work out how much holiday they are entitled, then add those hours (or round up to whole days) to their annual pay, prior to splitting into 12 payments.

How are you going to do the payroll? Are you going to have months, such as August where there is no pay at all?

It does matter when the holiday is; it cannot be taken during the school term-time. However, our nanny has asked to be paid for each week that she works rather than in 12 equal installments. I was thinking about dividing holiday pay as it were across the 39 weeks that we pay her so it essentially becomes part of the weekly amount and there is no confusion about how much holiday pay is due at the end of a term etc.

Would that work?

The guidance on this changed as a result of the judgement of the European Court of Justice in 2006 in the case of Caulfield v Hanson Clay Products.

Rolled up holiday pay does not comply with the Working Time Regulations so you should pay it when the holiday is actually taken ie during the school holidays.

If you don't want to follow this advice (and you may think that it is unlikely that your nanny will take you to a tribunal over it), include the holiday pay as a separate line on the payslip: this is still in breach of the Working Time Regulations but it is very unlikely that a tribunal would award any compensation because you can demonstrate that there has been no loss to the employee.

Of course the more weeks you spread the pay over, the better off she will be financially because the first £110 in each week is free of NI; this also applies to the employers contributions so paying over 4.5 additional weeks is worth up to £49.50 to her and £57.60 to you - not a lot over a year, but at least it is in the right direction.

Is it still possible to opt out of Working Time Regulations? Nannies often work quite long hours, with little or no breaks, so probably wouldn't comply with other parts of WTR.

Good point about spreading the payment and in so doing actually making a little saving.

could you not just pay her term time when she wrks then pay her, her holidays in the 1st few weeks of the summer holidays as 6/7weeks is a long time with no income where as an odd week/ 2 at oct week xmas, easter is more managable to got without 1 week mayb 2 weeks pay.

I think nannies are exempt from the working time directive:

www.direct.gov.uk/en/Employment/Employees/WorkingHoursAndTimeOff/DG_10029426

www.nannytax.co.uk/parents/employment-costs/national-minimum-wage

Our nanny has specifically requested that she be paid only during the weeks that she works - we asked her how she'd like to be paid and this is what she asked us to do! I think she's working on the basis that she hopes to pick up some holiday only work so won't be without pay during the school holidays.

The basic rights under the WTR are:

Limit of an average of 48 hours per week which a worker may be required to work, however they can opt-out of this limit and work more if they want to.

Limit of an average 8 hours work every 24 hours for night workers.

Free health assessments for night workers.

11 hours rest in every 24 hours.

A minimum of one day off per week.

Rest break during working hours if the working day is longer than 6 hours.

A minimum of 28 days paid leave per year.

The first one (48 hours per week) is the only one you can opt out of.

The following do not apply to 'a worker employed as a domestic servant in a private household' (which is usually taken to include a nanny):

Limit of an average of 48 hours per week which a worker may be required to work, however they can opt-out of this limit and work more if they want to.

Limit of an average 8 hours work every 24 hours for night workers.

Free health assessments for night workers.

... but the remaining provisions do apply.

So to be absolutely clear, even if the employeee wants to be paid holiday pay each week, an employer that does that is not complying with the law.

OK that's what the regulations say, but paying holiday pay each week isn't an offence, is unlikely to result in a tribunal award against you and many employers large and small have decided to continue to do it.

Thanks for making that so clear. Given the regulations do you think it would be sensible to ask our nanny if she'd be willing to sign something that confirms that she wishes to be paid holiday on a weekly basis?

Also, how do nannies get rest breaks? As teachers we, in theory, have an hour of non-contact time at lunch (although I have yet to encounter a teacher that regularly gets this but we realise that when we sign up for the job) but I can't work out how nannies get time off during the day.