Thursday, 12 July 2012

Help is at hand

Motherhood is upon you and you need help. But where to start? What is the difference between a nanny and an au pair? Are there any legal pitfalls? Employment lawyer Naomi Oppenheim advises

Written by Naomi Oppenheim
What kind of help do you need?

Nannies are childcare professionals. Specific roles may mean they help with the odd task around the house, but their primary focus is to help raise children. By contrast, an au pair is 'an extra pair of hands'. Au pairs are generally young girls from abroad wanting to experience life in England and learn English, and usually they have very limited childcare experience.

Nanny, please!

Your relationship with your nanny will be that of employer and employee. Make sure your nanny: (i) has an employment contract; (ii) has the right to work in the UK; (iii) has undergone CRB checks, and (iv) is paid the national minimum wage (NMW). You also need to operate PAYE and make tax deductions, provide your nanny with regular payslips and allow her annual leave.

What should an employment contract contain?

Necessary information will include: who the nanny is employed by, start date, hours and place of work, duties and house rules, sick pay and absence reporting, salary, holiday entitlement, entitlement to any benefits, notice period and other points relating to termination of their employment, confidentiality provisions and their agreement to certain salary deductions. Terms of employment should be documented and agreed before your nanny starts work.

I have a template employment contract from my agency, will this do?

In addition to setting out rights and obligations between you and your nanny, this document should comply with current legislation and be drafted to give the best possible protection to you, the employer. A template contract from an agency may not be drafted with your (the employer's) best interests in mind or to fit your family's particular circumstances.

What rights does my nanny actually have?

Your nanny has two types of rights: (i) contractual rights and (ii) statutory rights. Some employment rights, such as protection from discrimination, the right to paid annual leave or the right to the NMW, exist from the start of the working relationship. Others, such as the right not to be unfairly dismissed or the right to statutory redundancy pay, usually require a minimum service period, so it is important to be clear about your nanny's start date.

Do I have any rights?

You do. The difficulty lies in exercising them in such a way that does not infringe upon your nanny's rights. Some tips: (i) get your nanny to sign a proper contract; (ii) be more proactive in tackling problems when they arise, eg, if your nanny's performance isn't up to scratch, and (iii) put your nanny to the test by asking them to complete a trial period. If you aren't sure, don't keep them. A nanny can be akin to a family member, so choose wisely. Also, agree a gross salary; if you agree a 'take-home salary', this means you will need to 'gross it up' by paying their income tax and National Insurance contributions to HMRC, in addition to your own National Insurance contributions.

Does employing a live-in nanny change anything?

The 48-hour working week limit does not apply to domestic workers in a private household (although other restrictions on working hours still apply). Also, a nanny living as part of the family household and treated (on paper and holistically) as a part of the family, will not be covered by NMW legislation. The policy behind the NMW is that workers should receive remuneration as salary rather than as benefits, so the value of many benefits is excluded for NMW purposes. Your nanny's contract should also tie their right to occupy your property to their employment. Otherwise, you risk giving your nanny an interest in that property.

Au pair, please!

You will act as host for an au pair and they are effectively your guest. The Home Office requires that au pairs are treated as part of the family rather than as employees. You need to provide full board and some weekly pocket money in exchange for their help around the house. The Border Agency usually has strict requirements for you and your foreign au pair. Take advice about what those requirements are. You don't want to have someone living in your home unlawfully. If what you need is solid support rather than a helping hand, an au pair probably isn't for you.

The law only distinguishes between domestic and office workers in very limited areas. With HMRC cracking down on those who pay nannies in cash and employment claims brought by domestic workers against employers on the increase, it pays to take advice from the outset.

Naomi Oppenheim is a solicitor specialising in employment law at London law firm Fladgate LLP: 020-3036 7000, www.fladgate.com

To find an au pair or nanny, see our Classifieds section on page 64 in The Lady Magazine.

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