Once you have decided that you are going to employ a nanny or other domestic worker it is very important that both parties understand and agree to what is expected from the working relationship. This should be established in a written contract of employment with stated terms and conditions that are signed and adhered to by employer and employee.
Here’s a clear guide to establishing a secure contract that will protect all parties involved.
Unsure if you need a contract?
All employees have a right to receive an employment contract. Only workers who are exempt from employee status such as independent contractors, for example a self-employed cleaner do not require a contract of employment.
How long do I have to get a contract in place?
Employees have a right to receive a written contract outlining their terms and conditions in the first two months after they begin their employment.
What are the implications if there is no written contract in place?
The relationship between domestic employer and employee is often seen as a much closer and casual relationship than in a commercial employment setting, this means that a written contract is not always seen as necessary. This can cause concern when a legal or contractual issue, such as holiday or sick pay arises or even salary agreements.
When there is no written contract in place the terms will be determined by evidence such as payslips, letters or written/emailed communication. An oral agreement can also be used but for obvious reasons this is hard to establish.
Employees, even without a binding contract are protected by the following statutory rights:
- Age appropriate minimum wage (currently £7.20 from April 2016 for over 25s). This is unless the employee is a live-in employee where the employer pays full room and board. In this instance the minimum wage does not apply.
- Statutory minimum period of notice
- After 2 years of employment redundancy and unfair dismissal rights
- The right to Statutory Sick Pay
- The right to maternity, paternity and shared parental leave/pay if employment for the appropriate amount of time
- Paid annual leave
- Protection from discrimination
- A safe place of work with breaks and rest periods. For nannies or personal carers/assistants where it would be impossible to have a break during working hours as they are looking after dependents the employer must pay for the full day work in lieu of breaks.
My employer refuses to provide me with a contract, what are my rights?
Employees can seek free employment law advice from their local Citizens Advice Bureau or from ACAS. In extreme circumstances where a contract has not been issued within 2 months of the beginning of the employment then the employee may take their employer to an employment tribunal.
What does a contract need to include?
- The date the employment will commence alongside probationary and notice period. The notice period tends to be shorter for both parties in the first few months of employment and increases over the length of service.
- Hours of work
- A clear and concise description of the employees expected duties and tasks of employment
- Starting salary – we would always advise agreeing a gross salary with any employee
- The employer’s agreement to operate a PAYE scheme and pay the tax and NI due on the employee’s behalf
- Holiday entitlement (the statutory for a full time employee is 28 days including bank holidays). The contract may also include a clause stipulating who chooses the holiday. The standard for domestic employees is that the employer picks 10 days and the employee picks 10 days + the 8 bank holidays.
- Sickness and maternity leave and any other leave that covers at least the statutory amounts
- Grievance and disciplinary procedure
- A contract may also cover privacy/confidentiality clauses regarding the employer and their family.
- It is becoming more common for contracts to include a social media/internet policy especially in a domestic employer relationship to outline what and what isn’t appropriate to post or represent on social media. For example, a contract could stipulate that a nanny must never post pictures of her charges on social media.
What are the implied duties of employer and employee?
There are conditions of employment which are a given in an employer/employee relationship alongside the statutory rights.
These include that the employee must:
- Carry out the work that they are paid to provide
- Take personal and reasonable care in their duties
- Be competent to perform their role and take the employers instructions
- Serve honestly and faithfully and preserve their employer’s confidentiality
And that the employer must:
- Pay their employee the agreed wages
- Provide their employee with all provisions required
- Take care of their employee’s health and safety including a safe work space
- A duty to preserve a relationship of mutual trust and confidence
How can I ensure that my contract is legally binding?
There are 4 essential elements that must be included in a contract in order to make it legal binding. These are; an offer of employment, an acceptance of the offer, consideration (i.e payment for the services of the employee and the intention of agreement to enter into a legally binding document (for example, a signature).
Nannytax and Stafftax provides free contract templates for all our clients. Employment law advice is provided by Nannytax & Stafftax Legal if you wish to adapt the contract for any terms of employment particular to your situation, all as part of our annual subscription.
Note please: This information is currently correct at the time of writing May 2016, this may be subject to change