Nannies and basic employment rights

Employment law – the basics

Starting a new job is often a worrying time for anyone but particularly so for those, such as many nannies and domestic workers, who have moved to the UK from elsewhere. Living and working in a private home may seem rather isolating, leaving the worker open to exploitation. It should be reassuring to learn that the UK has a strong employment law framework, which provides considerable protection for employees. This includes nannies employed in a private family home.

The employment contract

An employment contract is an agreement to work for someone in exchange for money. It is quite usual for a worker to presume that because they have not signed an employment contract, no such contract covers them. However, an employment contract can be written or verbal. Both types are valid and legally enforceable. In the context of a nanny, even if there is no written contract, it is still probable that a verbal contract governs the relationship between the parties. This is likely to be the case even if the employer either regards the nanny as self-employed or casual labour, or refuses to address the issue at all.

Indications of employment

An individual is in an employment relationship if the employer tells them what to do and when to do it. The following factors are also strongly indicative of an employment relationship:

• • that individual is expected to perform the job themselves, and is not allowed to substitute another person in their place;
• • the individual receives an agreed amount of money at regular intervals;
• • the employer provides relevant equipment; and
• • the individual is not expected to find their own substitute if they are too ill to work.

Written terms and conditions of employment

Whether a contract is oral or written, an employee is entitled to receive a written statement of their terms and conditions of employment within two months of beginning work. This is evidence of existence of an employment contract. As a minimum, the written terms and conditions must state:

• • the employer’s and employee’s names;
• • the date employment and continuous employment started;
• • job title and description;
• • employment location;
• • pay and its frequency (usually monthly or weekly);
• • working hours;
• • holiday allowance and entitlement (number of days and any restrictions on when they may be taken); and
• • details of any relevant collective agreement (this is unlikely to apply to a nanny).

Employment protections

There are two types of protection: statutory and contractual. All employees benefit from the statutory protections laid down by law. The most important of these provide for:

• • the right to a written statement of the terms and conditions of employment;
• • the right to paid holiday leave at the normal rate of pay;
• • the right to maternity leave;
• • the right to a minimum amount of sick pay for anyone too ill to work;
• • the right to a redundancy payment provided the individual concerned has been employed for at least one month; and
• • protection from unfair dismissal for anyone employed for a minimum of two years.

It is not permissible for an employment contract, whether written or verbal, to offer less protection than is provided for by statute. In such cases, the statutory provisions prevail.

Common contractual problems affecting nannies

The uniquely vulnerable position of many nannies makes them at particular risk of exploitation by employers who either do not understand the law or who choose to ignore it.

Withholding of salary when the family goes away

It is not uncommon for nannies not to receive their salary when the family for which they work go away on holiday. There are two important points to note here.

• 1. If the nanny accompanies the family, he or she must be paid their normal rate of pay.
• 2. If the family does not require the nanny’s services during the holiday, it may be acceptable to require that nanny to take some of their own holiday leave during this time but this must be paid leave. “Rolled up” holiday pay is only permissible for casual and agency workers, neither of which apply to a nanny with a subsisting employment relationship.

Overtime issues

Overtime is any time that is worked in excess of the hours agreed in the employment contract (whether oral or written). Although there is no legal requirement to pay an employee for overtime, that employee’s pay must not fall below the national minimum wage. Some employment contracts provide for overtime payments and the appropriate payment must be made where such provision exists.