July 2002
Courting Trouble
The nanny-employer relationship is not just a personal matter, Nannytax explains
The growing trend over the past few years for nannies to be paid wages that fit their professional status has been accompanied by a growing demand for proper terms and conditions of employment. There have always been disputes between nannies and their employers, but in the past these rarely led to legal consultation. In the course of providing our Nannytax payroll service to parents and their nannies all over the UK, we have become aware of a demand for up-to-date advice on employment law.
For this reason we launched our advice service Nannytax Legal last August. For a small annual fee, parents have unlimited phone access to a team of fully qualified solicitors and barristers who will give detailed advice on specific issues and incidents that may arise with employing a nanny. Subscribers receive detailed advice on customising the contract of employment that either Nannytax or their agency has provided them to fit their own circumstances.
Although the service is primarily intended for parents, nannies stand to benefit from timely advice on any issues that might occur in their working relationship. Since the nature of the relationship between parents and nanny is quite special, and unusually sensitive and personal in many respects, it is even more important that disputes or failures in communication should be tackled in as calm, professional and well-informed a manner as possible.
In the worst-case scenarios, failure to do so can result in sleepless nights and a great deal of anguish for both employer and employee. But on a less dramatic or disruptive level, the minor issues can easily be resolved if timely and well-informed advice is available. As a result of offering this service we are now convinced that it is of as much value to the working relationship between nanny and employer as the more widely-known payroll service we provide.
EMPLOYMENT CONTRACTS
When you start work as a nanny for a new employer, the contract of employment you should be offered, eight weeks after starting work at the latest, should specify all the main conditions under which you are employed. This includes what is expected of you, as well as what you have a right to expect from your employer. Areas covered may range from the obvious – duties, working hours, pay, holiday entitlement and so on – to the not so obvious, such as the need for a nanny to maintain confidentiality about her employer's business or personal life, or whether there are any guidelines for a nanny on having guests to visit.
An important element in the contract should be that it spells out a grievance procedure that an employee can follow when a dispute arises, detailing how a complaint or issue will be formally handled. If a nanny is not confident that her employer will take such an issue seriously and do something about it, then she is far more likely to seek help outside the relationship, which may mean consulting a lawyer.
MATERNITY ISSUES
The law governing maternity leave is constantly changing, and many secondary issues can be involved, such as how sickness during pregnancy affects the working relationship, or how much time off a pregnant nanny is entitled to for doctor's appointments and ante-natal check-ups.
An employee cannot be dismissed on the grounds of pregnancy. If an employer was intending to make a nanny redundant before they found out she was pregnant they would have to tread very carefully and take step-by-step advice to avoid a claim for unfair dismissal.
In one recent case, an employer sought advice on whether to agree to her pregnant nanny's request to be able to bring her baby back to work with her after her maternity leave. The employer was not against this in principle but wasn't sure if it would work. She was advised that she did not have to agree to this, but could offer her nanny a trial period. Although this solution might seem like common sense, it was important that the employer was certain that she was not obliged to agree to her nanny's request and that the nanny understood that her employer was happy to try accommodate her request if it proved workable.
SICK PAY
Apart from Statutory Sick Pay, currently £63.25 a week, many employers pay their nannies at their full daily rate when they are sick, at least for several days, as a matter of goodwill. But what if a nanny develops a serious or long -term illness, or requires time off work for medical treatment?
REDUNDANCY AND DISMISSAL
With the current slowdown in the UK economy, many nannies have found themselves laid off by employers who have either lost their own jobs, or have had to cut their childcare costs because they are self-employed and less in demand themselves.
If an employer no longer has the need to employ a nanny, then there is little that a nanny can do about this. If she has worked for more than two years she will be entitled to some statutory redundancy pay. But if the employer is planning to employ a part-time nanny instead, then this new position must be offered to the current nanny first.
However, if a nanny is to be dismissed on the grounds of misbehaviour, or because she has fallen out with her employer, then it is important for the employer to follow a very specific set of procedures, including verbal and then written warnings. They must not just sack the nanny, as this could result in their being taken to an employment tribunal on the grounds of unfair dismissal. Likewise, attempting to push a nanny out of a job by changing her terms of employment without her consent, or, for example, cutting her salary, could be interpreted as 'constructive dismissal' by an employment tribunal, resulting in a possible award to the nanny.
DISCIPLINARY ISSUES
While it is not in an employer's interest to impose unreasonable rules of conduct on a nanny, it is reasonable for them to expect a certain standard of behaviour in areas such as time-keeping, job competence, standard of dress or appearance, and disruptive or even criminal behaviour. Minor violations of this should be dealt with informally.
In the event of more serious breaches, an employer should have provided a clear-cut written procedure to their nanny, usually as a part of their contract, which also includes a series of verbal and written warnings. Employees are entitled to state their case at each stage of this procedure and to be accompanied by a friend or a trade union official (if a union member).
REFERENCES AND CHECKS
In a recent case, an employer offered a job to a nanny subject to a satisfactory police check, and the nanny failed to come up with this check after a reasonable period of time. She had already received a verbal warning that her employment would be reconsidered if she failed to produce this, and she had given a series of excuses as to why she had not complied. The employer was advised that as there were no other issues involved, such as pregnancy or an outstanding dispute over pay or conditions, she was entitled to dismiss the nanny.
TALK IT OVER
From some of the examples here it is clear that in anyone case there are often several overlapping factors or circumstances that must be taken into consideration. This is why more pro-active and experienced legal advice may be needed than can be found in any handbook, fact sheet or formula.
However, although nannies may need to seek their own independent legal advice when they have a serious dispute with an employer, both parties should first use every means to communicate about it directly. Otherwise, no matter what outcome the legal help brings about, the nanny-employer relationship may be beyond repair by then.