WE ARE SURE YOU WILL ALL BE AS PROUD AS WE ARE TO BE PARTICIPATING IN A NATIONAL EFFORT TO PROTECT THE VULNERABLE AND OUR KEY WORKERS
THE FOLLOWING INFORMATION REGARDING EMPLOYMENT ISSUES AND DILEMMAS IS FOR GUIDANCE ONLY TO INFORM THE PROFESSIONAL DISCUSSION BETWEEN NORLANDER/NQN AND EMPLOYER - PLEASE NOTE IT IS NOT ADVICE NOR NORLAND’S DECISION – ANY DECISION MADE LIES WITH THE NQN/NORLANDER AND THEIR EMPLOYER.
Update 11 May 2020
The Government have today issued their Plan to Rebuild Document which outlines their recovery strategy with regard to COVID 19.
Please note that nannies are specifically mentioned on page 26 where it says:
“The Government is also amending its guidance to clarify that paid childcare, for example nannies and childminders, can take place subject to being able to meet the public health principles at Annex A, because these are roles where working from home is not possible. This should enable more working parents to return to work”.
We recommend that you read the document in its entirety as it contains useful advice to keep us all safe during these difficult times.
Update 4 May 2020
You may have seen some further information that appears to relate to the nanny role (but doesn’t specifically state this) – you can access the official guidance here under point 12 which addresses the key question ‘Can I travel to someone’s house to look after children?’ which you can read here.
This is what the advice states:
If you provide paid-for childcare in a child’s home, you can go to your place of work - this is in line with Government guidance that you can travel to work if working from home is not possible. However, it is important that you take as many precautions as possible in line with Public Health England guidance, including:
- if you or someone in your own home has symptoms, you should not go to work, but self-isolate in accordance with Government advice
- you should not work in any household which is isolating or where an individual is being shielded, unless it is to remedy a direct risk to the safety of the household
- wash your hands more often than usual, for 20 seconds using soap and hot water, particularly after coughing, sneezing and blowing your nose, including when you arrive at work and when you return home
- to reduce the spread of germs when you cough or sneeze, cover your mouth and nose with a tissue, or your sleeve (not your hands) if you don’t have a tissue, and throw the tissue in a bin immediately. Then wash your hands
- clean and disinfect regularly touched objects and surfaces using your regular cleaning products to reduce the risk of passing the infection on to other people
- maintain social distance as far as possible with family members and others that you are not directly caring for
Your employers are responsible for informing you and supporting you in how to maintain these measures.
This advice appears to contradict the MP’s letter from our last update which suggested that nannies should not go to work unless they work for a Key Worker or vulnerable child. We have contacted 5 different government departments to ask them to address the confusion such contradictory information generates and to resolve the apparently conflicting advice. However, none will specially address the issue. The advice outlined above seems to be suggesting that nannies can go to work.
Either way, any decisions should still be made via a professional discussion with your employer and the usual precautions taken to minimise risk, including completion of a risk assessment.
We share your frustration about the continuing difficulties you may still be experiencing. Hopefully, with the planned phased lockdown release, the dilemmas facing you will soon be diminished. In the meantime, we hope you are keeping well and safe.
Update 17 April 2020
As you are aware, the lockdown has been extended by a further 3 weeks which may generate further issues for you all as you adjust to the extended period of social distancing. We also wanted to bring your attention to the following letter from the MP Anne Marie Morris that was sent to one of our Norlanders. We have been given direct permission to publish this letter by both the MP’s office and the Norlander. This may be helpful to you in terms of how we should interpret the government guidance. Norland recognises that this letter may not resolve the dilemmas facing you all and we do appreciate the difficulties you may be experiencing during this troublesome time for us all. Nonetheless, we feel obliged to alert you to this as it is from an official government source. We trust that any response you may have will be communicated in a professional and courteous manner whether this is to your employer or to others.
Further to our update of 14th April regarding furloughing nannies, you may also have seen the revised guidance amending the date from which you can furlough workers. You can read this on the government website.
I’m sure the extended lockdown may bring new trials and tribulations for you all as we make further adjustments. You may have seen the various resources we have been generating and the access we have provided to helpful information. For example, there are a range of useful strategies that our Student Support team have been sharing which can support your wellbeing through this difficult time. We’ve written various blogs that address some of the key issues you may be facing along with numerous activities that might help fill the time with your charges in you’re still working.
We’ve been so proud of all the Norlanders and NQNs who have coped so magnificently with adverse circumstances with many having gone ‘above and beyond’ to support their families. Even those who have not been able to work have continued to provide their families with resources and virtual support to help their charges cope with the challenges this crisis has brought to us all. There are also many out there volunteering their services to assist the community in a myriad of ways. More than ever Norlanders and NQNs have been demonstrating the real meaning behind the key mottos advocated by our founder Emily Ward – Love Never Faileth and Strength in Adversity. We’re sure that when we look back at this extraordinary time we’ll be filled with awe and pride at how we have conducted ourselves and contributed to the national effort to combat this crisis. As the Norland Principal wrote in a Norland Quarterly at the end of the war:
Update 14 April 2020
We are pleased to hear from many of you that the information we have provided has been helpful. We continue to recognise the challenges facing many of you and want to let you know that we are thinking of you and hope that you are staying safe and well as we all work together in the national effort to overcome the impact of the virus. We’re also aware that some of you have been put in a very difficult position as a result of the current crisis and we are so sorry not to be able to do more to help clarify things for you or resolve your dilemmas. We are making every effort to interpret the government guidance for you and working with our legal team to address the confusion surrounding the guidance which has led to many different people developing often conflicting interpretations of the guidance. We continue to reach out to government ministers in order to gain greater clarity in addressing the unusual position of professional nannies. As we’ve mentioned previously, we’re unable to make definitive statements regarding the many varied circumstances under which Norlanders and NQNs are employed and there is unfortunately no ‘one size fits all’ solution to many of the problems. We also have no legal jurisdiction over private employment contracts and this limits what we can do for you.
But don’t forget that you can contact us directly even if you haven’t been placed directly in employment by the Norland Agency. We will endeavour to help you in whatever way we can and where feasible. If you do find that your employment circumstances have changed, please contact the Norland Agency who will be happy to help you.
New guidance on furloughed workers
You may be aware of some new guidance regarding the Coronavirus Job Retention Scheme which specifically mentions that nannies can be furloughed. This is the first explicit reference we’ve found to the nanny profession in formal government guidance. You can read this on the government website. Under the ‘Individuals’ section, it states ‘individuals can furlough employees such as nannies provided they pay them through PAYE and they were on their payroll on, or before, 28 February 2020’. Whilst this guidance does clarify that nannies can be furloughed, this is still a decision that your employer has to make and in agreement with you.
Update 1 April 2020
We continue to engage in ongoing discussion and debate regarding the dilemmas you may still be facing, particularly in relation to the position of live out/daily nannies and whether or not they should continue to go to work. Some additional clarification has been provided by the government with regards to travelling to work. However, this may not resolve your dilemma as it remains the case that much of this is open to interpretation. We have had several discussions with various lawyers, government staff and nanny insurance companies about how to interpret the fact that live out/daily nannies need to go to work as they fall under the category of ‘cannot work from home’ and the nature of a nanny’s work makes it impossible to adhere to the 2 metre rule. However, this is counter argued that nannies are not included in the key/critical worker category and such travel may not be deemed ‘absolutely necessary’, but (perhaps most importantly) they are increasing the risk to their own health and wellbeing, their charges, their charges’ families and the nanny’s own family, along with the general public, which may be detrimental to the national effort to reduce risk by social distancing – this is made clear in the following statement by the government ‘Employers must make all efforts to help people to work from home where possible, as this will help limit the spread of the virus by reducing the amount of contact between people.’ Any employer has a duty of care to any employee to pay due regard to their health and wellbeing.
As previously stated in our updates, you should be having a professional discussion between yourself and your employer to decide whether or not it is appropriate for you to continue to work. If you do, please refer to the update on 27th March 2020 which explains the need to undertake a risk assessment to help identify and mitigate risks. This should be a ‘living document’, which adapts and changes as the risk does and is applicable to all nannies, whether daily or residential. Contractual queries can be directed to your nanny insurer, payroll company or ACAS.
Please note that we have also had confirmation from the Dept of Education that:
- If a daily/live out nanny works for a key worker, they should continue to go to work if safe to do so - only 1 parent need be a key worker
- If a daily/live out nanny works for a vulnerable child (this includes newborns), they should continue to go to work if safe to do so
It remains the case that residential nannies may continue to work if safe to do so as they are already part of the household (please see other updates and FAQ information sheets previously posted for more information, particularly in relation to special circumstances you may have such as being part of the social shielding group).
Job Retention Scheme (furlough scheme)
As you are probably aware, further details of the furlough scheme (or to give it its proper name Coronavirus Job Retention Scheme) were published on Friday (https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme and https://www.gov.uk/guidance/check-if-you-could-be-covered-by-the-coronavirus-job-retention-scheme). There are still a lot of unanswered questions and our lawyers are still unable to give definitive advice. We have not yet been able to ascertain with certainty that nannies will be eligible under the scheme, (although some payroll companies are claiming that a Member of Parliament has confirmed this, we could not verify this with any of our sources). We also advise that the employer speaks with their own payroll provider for support resolving this dilemma. However, our lawyers have offered the following guidance (although we recommend any employer takes their own legal advice on this matter):
“If you and your employer both agree, your employer might be able to keep you on the payroll if they’re unable to operate or have no work for you to do because of coronavirus (COVID-19). This is known as being ‘on furlough’. So it may be possible for the nanny to be furloughed and the employer could claim for 80% of their usual monthly wage costs, up to £2,500 a month, plus Employer National Insurance contributions and minimum automatic enrolment employer pension contributions on that wage. The more detailed guidance says it applies to any UK organisation that has a PAYE payroll scheme and does not expressly say that it applies to individuals who employ others and operate a PAYE system or use a PAYE payroll provider like Nanny PAYE, so until there is further detail there is an element of doubt as to whether this will apply in this situation and whether families will be able to claim the 80% back from HMRC. Either way, both the nanny and the employer must agree to put the nanny on furlough. Only an employer can apply for the scheme.
If the scheme does apply to nannies then it will be up to the employer to determine whether they want to make up the balance of pay. In any event, we [Norland’s lawyers] would recommend that a furlough is not implemented unilaterally but that there is express agreement with the nanny, set out in a letter that they countersign, which expresses why the parties think the scheme applies to their situation, as HMRC may require evidence in due course. If families wish to proceed down this route, there is a risk that even if the nanny agrees to a reduction to 80% that this may not be recoverable from HMRC.
It is also clear that employees on unpaid leave cannot be furloughed unless they were placed on unpaid leave after 28th February 2020. Also, if a nanny is on sick leave or self-isolating they should get SSP, but could perhaps be furloughed after this. Any nannies who are shielding in line with public health guidance could perhaps be placed on furlough. Your employer can only submit one claim at least every 3 weeks, which is the minimum length an employee can be furloughed for. Please see the link above for further information regarding employer contributions and other relevant information."
Update 27 March 2020
Please note the following updated information. As always, this is not advice, but aims to provide you with some helpful guidance to inform your professional discussions with your employer about whether or not you continue to work, outside of the rules being imposed regarding self-isolation due to suspected illness and/or social shielding. We have had numerous exchanges with Norlanders, NQNs and their employers about the different ways one could interpret the official guidance and we are constantly reviewing the information, and checking official and legal channels, to provide you with as much clarity as we can under the circumstances and within the limitations of what we can do regarding your own personal context and contractual arrangements.
Public Health England’s position
We mentioned previously that we have been in touch with various organisations and official representatives which includes Public Health England. We have been in touch with Public Health England again and they reiterated what they said before as follows:
- They only repeat official guidance and there’s no guidance about nannies
- They’re unable to advise on anything that has legal implications i.e. on whether or not people go to work other than to repeat what’s in the official guidance. They recognise the enormous predicament for daily/live-out nannies but repeated that they do not advise other than to reiterate what the government has said – stay at home if you can, only travel if absolutely necessary and only go to work if you’re a key worker (which nannies are not) or (important for nannies) supporting a key worker – they seemed to agree that residential nannies are part of the household and therefore can continue to work within the standard restrictions on all households
- The guidance for education and childcare settings specifically excludes nannies and au pairs
- They did suggest that you contact your own Local Authority for guidance as councils are the only people who have the regulatory power to say whether or not people should go to work or not – we did try this ourselves (along with numerous other government organisations such as the Ministry of Housing, Communities and Local Government, the Dept for Education, the Dept of Work and Pensions and the Cabinet Office) to no avail.
Our legal counsel has advised us that regardless of how the official guidance is calculated, employers do have a duty of care towards their employees and a legal duty to carry out risk assessments in relation to any risks to health and safety, which would obviously include the risks posed by COVID-19. We all should be taking reasonable steps to control the risk, employer and employee, and these are well-known e.g. regular hand washing.
If a daily/live-out nanny and the employer both want to continue working (even though it is recognised that the 2 metre distance rule cannot be observed and that there will be an increased risk to both the family and anyone the nanny lives with, by the nanny travelling to work and working in another home), our lawyers have advised that the employer and nanny carry out a risk assessment. It is suggested that this is done together to ease agreement regarding the risks and how these are being mitigated where feasible. Both parties should then confirm in writing that they are happy for the employment to continue despite the risks identified by the assessment.
Our lawyers also suggest that residential nannies have a professional discussion with their employer and undertake a signed and agreed risk assessment as they may still have increased exposure depending on their particular household’s circumstances. As above, it is suggested that this is done together to ease agreement regarding the risks and how these are being mitigated where feasible.
Please note the risk assessment should address the following 4 areas:
- Description of the risk
- Who might be at risk
- What is the potential impact of the risk
- Comments/Actions to mitigate risk
No doubt you will have seen the latest government proposals regarding supporting those who are self-employed. Click here.
Please see our previous updates and FAQ information sheets where we provided information regarding the option of being furloughed if your employer operates a PAYE scheme. Click here.
25 March 2020
We have devised the following FAQ information sheet based on common queries we have received. Please note that this is based on guidance from our specialist lawyers. It is not formal advice. We know that you want Norland to give you a clear directive but as we’ve explained previously, this is not possible given that you all have your own individual contracts and that, ultimately, any actions you take must be led by government directives and a professional discussion with your employer. We’re not a governing body and do not have jurisdiction over your contracts. Nonetheless, we hope that the following information will help you to help to form the basis of a professional discussion with your employer and guide your own decisions in response to the dilemmas this crisis has generated. We recognise that the guidance below will still leave some of you with impossibly difficult, financially traumatic and/or unbearable ethical dilemmas. In time, we may be able to give you more definitive answers depending on your context, but we do empathise with your predicament and wish that we could do more under the circumstances.