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 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.