Legal and employment considerations for nannies and their employers during the coronavirus outbreak

Published: 12/03/2020

Given the worsening situation with the coronavirus, you may have questions about your rights as a nanny employer or your employment rights as a nanny.

We have sought legal advice and answered some of the most frequently asked questions here. Please note that this is accurate as of today (12th March, 2020) but may change over the course of the next few weeks. We will keep you updated as the situation develops and/or changes.

Disclaimer 

Tamarin Group Limited (trading as myTamarin) has prepared this document in conjunction with a legal advisor – but please note that myTamarin is not a legal advisor and does not offer legal advice and does not guarantee this document in any way. Therefore if you feel you need legal support, then please ensure you seek it from a qualified professional. myTamarin will take no responsibility or liability in any for any matters arising from this post.

1      Is a nanny eligible for statutory sick pay (SSP)?

Employees are entitled to SSP if they fulfil the following three criteria:

1) Working under a contract of employment;

2) Incapable by reason of disablement, from doing work which they could reasonably be expected to perform under the contract; and

3) Have average weekly earnings of not less than £118 per week gross.

Therefore, a nanny who is employed and earning £118 per week gross or more may be eligible for SSP.

2     Does a nanny qualify for SSP from the very first day of their employment?

Up until now (March 2020), SSP was not payable for the first three qualifying days in any period of incapacity for work (Social Security Contributions and Benefits Act 1992, s155(1)).

However, the government has announced that it will bring forward emergency legislation temporarily amending the eligibility requirements for SSP, allowing the statutory payments to be made from the first day of absence due to sickness. This will apply to all eligible employees, not just those with Covid-19. It appears that employees requested to self-isolate will also be included.

The government has stated that if the NHS 111 or a doctor advises an employee or worker to self-isolate, they should receive any Statutory Sick Pay (SSP) due to them.

Statutory sick pay is currently paid at £94.25 per week and will be increasing to £95.85 on 6 April 2020.

SSP may be payable at any time once the contract has started to be fulfilled, although amounts may vary depending on when the employee started. See here for an SSP calculator.

3     Who pays for SSP?

The employer (of a nanny). As a temporary measure, however, the government will reimburse small employers (less than 250 employees) any SSP they pay to employees due to the coronavirus, for the first 14 days of sickness.

We are currently seeking advice from HMRC as to how SSP will be administered and claimed back from the government. We will update you as soon as official guidance is released.

4     Does SSP vary depending on how many hours you do in your full-time position?

As long as the nanny is working under a contract of employment, is incapable of working by reason of disablement and earns at least £118 before tax, they are entitled to SSP regardless of the number of hours or days they normally work.

5     What happens if public transport is locked down and this impacts a nanny’s ability to get to work? In other words, do nannies have any right to be paid if they are impacted by the virus but don’t have it themselves?

This would not trigger SSP requirements. However, we will need to ultimately refer to government guidance still to be issued on this. 

6    What are a nanny’s rights if a parent suspects the nanny is ill, but the nanny thinks she is fit to work and the parent sends her home?

According to ACAS guidance (non-legally binding), if an employee is not sick but their employer tells them not to come to work, they should get their usual pay.

When employers are deciding whether or not a nanny should be sent home (i.e. self-isolate), they should consult the Government guidance on who should be in self-isolation

Where an employee is suspended by their employer on health and safety grounds, because of a possible risk of infection which does not fall within the government's self-isolation advice, it is likely that they will have the right to continue to receive full pay on the basis of the employer's implied duty to pay wages.

7     What happens if a parent/child is ill and the nanny is told she can’t come into work until they have recovered. Are the parents obligated to pay the nanny still?

While there is no general obligation on the employer to provide work to the nanny, where an employee is willing and able to perform work in accordance with the contract, the employer has an obligation to pay wages.

A potential temporary solution is to put the nanny on short-time working if the employment contract permits it (or if it does not, to seek agreement to short-time working with the nanny). Please note that the myTamarin standard contract of employment contains a right for the employer to invoke this, however contracts may differ and so each individual nanny contract should be consulted.

Short-time working occurs when employees are laid off for a period of time or for a number of contractual days each week, or for a number of hours during a working day. During such time, the nanny may be entitled to receive guaranteed pay up to a maximum of £145 during any 3-month period. A guide to short-time working can be found here.

As a general rule, short-time working is a temporary measure which can help avoid redundancy situations. However, if the lay-off lasts for a continuous period of up to 4 weeks, or for 6 or more weeks in a 13-week period, then the nanny can claim a redundancy payment.

8    Could parents “bank” nanny hours?

For example, little Johnny or his dad get sick, and the family ask their nanny not to come in for 10 days, which equates to 100 hours of her usual work. Can they ask her to work those hours later?

Banked hours are not a contractual right - this could be mutually agreed but the nanny would not be obliged to accept it. Please also refer to “short-time” working above as a potential solution for such situation.

9    What happens if parents or nannies want to make changes to the working conditions that the other party find unreasonable? E.g. parents tell a live-in nanny that she cannot leave the house, or parents ask the nanny to wear a facemask at all times.

Clause 1.2 of the myTamarin standard employment contract template authorises the employer to make changes to the nanny’s duties and responsibilities at any time. However, whilst this is a flexibility clause which affords the employer broad power, it cannot be used without limitation and any change which imposes additional restrictions not contemplated when the contract was signed, are unlikely to be accepted by a court or tribunal. Please note that other forms of contract may contain different rights and obligations for employers with respect to a nanny’s duties and obligations.

In the current climate, myTamarin recommends that all parents, and nannies be flexible and cautious in respect of health considerations, and additional steps, such as wearing face masks.

However, in all cases, the willingness of the nanny to accept will depend on the nature of the proposed condition and the nanny may raise a dispute under the contract if conditions imposed are deemed to be excessively restrictive. In certain cases, this could give rise to an unfair dismissal claim.

10 Can a nanny be let go during her probation period for not disclosing symptoms or travel to high-risk countries; or indeed because she gets sick (coronavirus)

The myTamarin standard employment contract (Clause 3.1) allows for the employer to terminate the nanny’s employment at any time during the probationary period (the length of this probationary period depends on the particular contract) for any reason linked to the nanny’s suitability for the job. The notice period for this is 1 week. If using an alternative contract, please verify the provisions relating to probationary periods.

In certain circumstances, failure to disclose symptoms may be considered gross misconduct given the potential health risk that the family is likely to be exposed to.

However, dismissing the nanny following a positive diagnosis of coronavirus, and using that diagnosis as a basis for dismissal, amounts to discrimination on health grounds and is unlawful.

Employers should make clear to nannies the countries to which they should not travel, using Government guidance. However, such a condition may not be enforceable.

Employers should be very careful about discriminating Nannies based on ethnic or racial background and the likelihood of contracting the virus on that basis. 

11    Can a nanny be let go later for not disclosing symptoms or travel to high-risk countries?

Employers should, in the first instance, inform nannies of countries to which they should not travel, using Government guidance.

Employers can attempt to amend the contract terms to prohibit travel to the countries listed in the Government guidance to pre-emptively avoid such situations. Any amendment would require consent of the nanny, which may be willingly provided given the personal risk of travelling to such countries.

In extreme cases, this could be considered Gross Misconduct under Appendix 2 (based on the myTamarin standard contract) and be grounds for summary dismissal, either under “serious breach of health and safety rules” or “Wilfully causing harm or injury to any person”, particularly if the nanny does not disclose travelling to a high-risk country and then returns to work. Different contracts may address this situation differently and should be consulted individually.

12  Can a nanny be asked to (or be forced to) (semi)self-isolate, e.g. to not leave the house, not go to the gym, not go out to pubs, theatres etc., or else she will lose her job? Is there a difference if she's a live-in or a live-out nanny?

The employee has a duty to obey the lawful and reasonable orders of the employer. These orders do not need to be included in the contract but must be followed by the nanny nonetheless.

Whether or not the nanny must obey the request depends on its nature. In the case of live-in and live-out nannies, again the nature of the request in the context of their employment will impact whether the nanny can be forced to follow it. What is ‘reasonable’ depends on circumstances and in the absence of specific government guidance on this, employers and nannies should make adjustments in the interests of their collective health.

The difference between live-in and live-out nannies in this context is the employer’s ability to monitor and enforce the partial or total self-isolation.

In case of a dispute, the employer would need to demonstrate that any changes required do not constitute unlawful grounds for unfair or constructive dismissal. 

13  Can parents let go of a nanny because she's arguably not following the hygiene standards enough?

The nanny will have to be subject to certain hygiene standards in the first instance, e.g. through a separate hygiene policy communicated to new and existing nannies.

Nannies generally have a duty to look after the employers’ children’s needs, welfare, development and health and safety (e.g. Appendix 1 of the myTamarin employment contract template). If it is ‘arguable’, employers will most likely have to go through a contractual disciplinary procedure.

A nanny employment contract should typically state that a serious breach of health and safety rules constitutes gross misconduct and is cause for summary dismissal - even if it does not state it explicitly, it would still in all likelihood be a legitimate ground for dismissal. The employer’s ability to rely on failure to follow hygiene standards depends on its seriousness – it would have to be fairly clear-cut (and wilful) failure to follow the hygiene standards.


Still have some unanswered questions? Check out our FAQs on what CV-19 means for nanny employment.

Should you have any further queries, don't hesitate to get in touch via hello@mytamarin.com or call +44 (0)203 432 0234.Tamarins are monkeys who parent in family groups – like a village – helping each other while children are small.

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