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.
Update 24 March 2020 (17.10)
New FAQ regarding COVID-19
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.
Update 24 March 2020 (10.30)
We recognise the enormous distress the current uncertainty regarding your jobs and/or NQN year must be generating during this shocking and unprecedented crisis. We have been reading and, to some extent, responding to your many and varied queries. Please be assured that we are thinking about you and working hard to resolve your many dilemmas to the best of our ability and within the boundaries of what we’re able to advise. We are also attempting to resolve the impact on current students in the midst of addressing your concerns. We know that many of you want us to tell you definitively what to do. We are currently in consultation with our lawyers to see if we can find some appropriate guidance. We are also trying to contact various government officials to see if we can get a clearer answer. However, I’m sure you will appreciate that there is presently an enormous lack of clarity for the nanny profession as well as delays in people responding to our own queries. Moreover, we have to be very careful about what guidance we provide, particularly as the situation appears to be changing daily, sometimes hourly. We know you would not want us to be communicating inappropriate (if not illegal) guidance unless we are sure that this is accurate information. Whilst it may seem as if we’re slow in responding to you, this is because we are endeavouring to ensure that the guidance we give is based on government and legal directives. Norland absolutely wants to support and advise where we can, but we hope you will recognise that every person’s situation is different and that you are all employed with your own particular contracts. Therefore, we may not be able to respond to individual queries posted on facebook, although we know that this will be difficult for you and may seem as if we’re not listening to you all. We would also make a plea to you all to be cautious about giving your own advice to others on facebook. We hope you are recognising the fact that the huge implications a pandemic of this magnitude is creating have not, and perhaps could not have been, anticipated. This also makes definitive advice extremely challenging for all, including the government.
As previously communicated, Norland is operating on the key principles of collaboration, constructiveness and courtesy in all exchanges, alongside our twin mottos of Strength in Adversity and Love Never Faileth, and I would ask that you kindly consider these principles when emailing or posting your concerns to us. Please keep checking our pages on our website which contains all our updates. We will also notify you of these updates by email (NQNs) and facebook (Norlanders). We know that at the moment you may be left in limbo which is incredibly frustrating for you all. All that we can say for now is that any decision about whether or not you go to work right now should always be a decision that you and your employers make together through a professional discussion, as advised previously. We hope to have some answers from our lawyers, and perhaps other officials, soon.
Update 19 March 2020
We recognise that this is an extremely difficult time for you all as you grapple with the current crisis and are face with difficult and sometimes impossible decisions. We are working hard to try and respond to your individual queries and concerns. We hope that the information we sent out yesterday helped to alleviate some of your dilemmas. As we mentioned in the information we provided, we are not always able to offer definitive solutions as so much will depend on particular circumstances and we’re not always able to offer specific advice on legal and medical matters.
Nonetheless, we have been in contact with our lawyers to try and elicit more detailed guidance on some of the issues you may be facing. I’m sure you’ll appreciate that this situation is constantly changing from an employment law perspective in terms of new government directives. The following information in italics has come directly from our specialist lawyers who have taken into consideration the particular context of employing and being employed as a nanny which we hope will be useful. Please note that this information is provided without prejudice and is not formal legal advice, but comes in the form of helpful legal guidance. You should still refer to your own contacts and legal advice as the basis from which to make decisions.
As things stand currently from an SSP perspective:
Employees who are incapable of work or who are deemed to be incapable of work because it is reasonably suspected they are infected or contaminated with a disease are entitled to SSP - so this covers people who have coronavirus or are suspected to have it.
The regulations were amended on Thursday, with the amendment coming into effect on Monday, so that those who are isolating themselves from other people to prevent infection or contamination with coronavirus in accordance with guidance published by Public Health England and by reason of that isolation are unable to work, are also entitled to SSP - so this covers those who are self-isolating in accordance with PHE guidance because they live with someone with symptoms of coronavirus.
As you will be aware last night the government issued updated guidance on social distancing for vulnerable people (those over 70, those with underlying health issues and pregnant women). At present, the guidance recommends that such people take measures to reduce their social interaction (avoid gatherings with friends and families, all large gatherings, non-essential use of public transport and work from home where possible) but it does not tell them that they must stay away from work, so they would not be deemed to be incapable, so are not entitled to SSP.
For everyone else the position is as normal.
The SSP regulations are due to be amended so that SSP is payable from day one rather than there being the usual three day waiting period, but as of yesterday this legislation has not been passed.
The SSP regulations are also due to be amended today so that employers with under 250 employees can recover SSP paid for the first 14 days - so hopefully the employers will be able to recover some of the cost.
From a contractual sick pay point of view:
It is doubtful that many contracts of employment will anticipate this type of situation and the Norland contracts don't.
If an employee is suffering from symptoms of the virus then they will clearly be entitled to contractual sick pay.
If they have not got any symptoms but are self-isolating in accordance with Government advice, then they will not strictly satisfy the definition of "illness or injury" in the Norland contracts but I'm sure that employers would not want to risk them attending work just so they get paid and possibly spreading the virus, so it would be good practice to treat them as on sick leave.
For everyone else the position is that although the government guidance is to work at home where possible, this is not possible for this kind of work (nannying), so if they don't attend work they are not entitled to be paid and this could be a disciplinary issue.
If the employer sends the nanny home then they will be entitled to be paid as the absence would be at the request of the employer.
As an example, if a nanny wants to stay working (whether they live in or not) that is fine and they should be paid, but if they don't want to attend work they would not be entitled to be paid unless they take the time as holiday. In these circumstances, I would suggest that the employer allows the nanny to take the time as unpaid leave once their holiday quota is used.
Please continue to contact us if you have a specific query that is not addressed by this email and we will endeavour to support you to the best of our ability.
With best wishes
The Norland Agency Team
Update 17 March 2020
This is an unprecedented and uncertain time. We recognise that it is generating a range of issues for you all given the unique circumstances of employing a nanny or working as a nanny, which the government are unlikely to specifically address. Moreover, each family’s circumstances will vary and may generate challenging and complex responses for which there may be no clear answer.
We have attempted to address some of the main queries we are receiving and offer some ideas about how you might resolve your dilemmas. We recognise that the information we have provided is somewhat generic but this is because the particular nuances of each family cannot be addressed easily.
We have advised you to contact either the Agency or NQN team if you do not feel the information sheet answers your query or concerns, and they will try to assist where they can. They may be able to offer some practical suggestions but please note that they are unable to offer legal or medical advice.
We will be continuing to monitor this ever-changing crisis and will update our information accordingly.
In the meantime we hope that you all stay safe and healthy during the difficult period ahead.
Update: 13 March 2020
Further to Norland’s post yesterday, the government has made a new announcement regarding new measures that the public should take in an effort to contain the coronavirus outbreak.
You should now stay at home for 7 days if you have either:
- A high temperature
- A new continuous cough
Do not go to your GP surgery, pharmacy or hospital.
You do not need to contact 111 to tell them you are staying at home.
The NHS have further advice about staying at home, you can read the latest advice here >
Use the NHS 111 online coronavirus service if:
- You feel you cannot cope with your symptoms at home
- Your condition gets worse
- Your symptoms do not get better after 7 days
Only call 111 if you cannot get help online.
Please be assured that we are continuing to monitor the situation and will provide updates as and when these become available from Public Health England.
In the meantime, continue to practise good hygiene – this is the single most important thing you can do. Hand washing advice can be found here >
Update: 12 March 2020
As you will be aware from the news, the number of coronavirus cases in the UK is steadily rising. Norland is monitoring the situation closely and has developed contingency plans within the guidelines provided by Public Health England.
We are closely following the guidance provided by Public Health England and the NHS. Currently (12 March, 10:30am), the advice is to continue with your normal activities with the exception of people who have travelled to the UK from the following places:
· anywhere in Italy on or after 9 March
· specific areas in northern Italy in the last 14 days
· Iran in the last 14 days
· Hubei province in China in the last 14 days
· Daegu, Cheongdo or Gyeongsan in South Korea in the last 14 days
If you have returned from any of the above areas, you are advised to stay indoors and avoid contact with other people, even if you do not have symptoms.
If you have travelled to the UK from the following places in the last 14 days and have a cough, high temperature or shortness of breath, even if your symptoms are mild, you are advised to stay indoors and avoid contact with other people:
· Italy (outside specific areas in northern Italy) before 9 March
· mainland China outside of Hubei province
· South Korea outside of Daegu, Cheongdo and Gyeongsan
· Hong Kong
If you think you have symptoms, please use the NHS 111 online coronavirus service.
Please visit NHS.UK/coronavirus for information about the virus and how to protect yourself.
Public Health England has advised the following with regards to hand hygiene:
Wash your hands more often than usual, especially when you:
- Get home or into work
- Blow your nose, sneeze or cough
- Eat or handle food
These actions will help you protect yourself and others.
How does this affect my employment?
At present, you would still be expected to go in to work unless the family were unwell with suspected Coronavirus or you/the family have been told to self-isolate. If you really do not wish to go in, you may be able to arrange to take these days as holiday or unpaid leave, but this would need to be agreed by your employer. This is outlined further on the ACAS website > https://www.acas.org.uk/coronavirus. If you have been told to self-isolate, you will be entitled to Statutory Sick Pay.
It is up to your employer and not Norland to tell you whether you should stay at home or go in to work. If the families are self-isolating and you have been working in the family home, please call the NHS on 111 to ascertain whether you should self-isolate with the family or leave and go home to self-isolate. Similarly, if you need to self-isolate but have nowhere to go because you live with your employer, please call 111 to ask for their advice as you may have to self-isolate within the family home.
This is a complex and difficult situation, especially as you may be living and working within the family home, but we must adhere to government guidelines. The government is due to release more information over the coming days, so we would recommend you continue to follow their advice.
If your charges are sent home from school/nursery, you should continue to care for them at home under current government advice.
We will keep you updated as and when further updates become available.