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Nicola-mod
Nicola-mod, Moderator
Category: Law
Satisfied Customers: 21
Experience:  Moderator
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We have a live-in housekeeper / nanny who is self employed

Customer Question

We have a live-in housekeeper / nanny who is self employed with us for the last 7 weeks. Due to the fact it was a rolling probationary period, we never produced a contract. We now believe she is not up to the task and our question is -
Are we obliged to give her notice?
Submitted: 4 years ago.
Category: Law
Expert:  Jenny replied 4 years ago.

taratill : Hello and welcome to Just answer, has she only been with you for 7 weeks in total?
Expert:  Jenny replied 4 years ago.
Hi sorry about the above, please can you tell me how long she has worked for you in total and whether she has a contract which gives a notice period?
Customer: replied 4 years ago.
No contract was ever provided or entered into
Expert:  Jenny replied 4 years ago.
Ok so has she only worked for you for 7 weeks?
Customer: replied 4 years ago.
Yes, only 7 weeks in total
Expert:  Jenny replied 4 years ago.
Hello, statutory notice for an employee who has worked for you for more than a month is a week's notice. She will also be entitled to a payment of accrued holiday pay. Holiday pay should be calculated on the basis of 28 days per year prorated down to 4 weeks.

You have not said the reason for termination, normally there is no problem with terminating for any reason so long as it does not amount to discrimination on the grounds of age, race, religion, sex, sexual orientation, pregnancy or disability. If you are concerned about any of these please let me know.

If I have answered your question I would be grateful if you would give my answer a posiitve rating. Thank you and all the best.
Customer: replied 4 years ago.
To be clear she is self employed. Is there a statutory obligation to provide notice to a self employed person?
Expert:  Jenny replied 4 years ago.
No, the problem is that even though many people are classed as self employed for tax reasons the employment tribunal would find them to be employed for employment law purposes. If a person is an employee for employment law purposes then they will be entitled to statutory notice.

If the person is a housekeeper/nanny the reality is that the person would be classed as an employee even though they are self employed for tax purposes. This is because the test for who is an employee concerns whether a person is allowed to substitute their services for another (a nanny/ housekeeper would not be) and the degree of control the 'employer' has over them. If your situation was tested then I am sure that she would be classed an employee.

You could argue that it is not payable but if she submits a claim then I would pay it otherwise you could be burdened with her costs as well if she raises a claim in the county court.

I hope this helps. Please do ask if you need any more information. If I have answered your question I would be grateful if you would take the time to give a positive rating. Thank you.
Customer: replied 4 years ago.
Her solr advised me me the fact that I initially proposed 2 weeks notice on Monday but then on Wednesday I reduced this to 1 weeks, she remains entitled to two? Is this correct?
Expert:  Jenny replied 4 years ago.
Hi, the statutory entitlement is 1 week. If you agreed 2 weeks with her then legally she is entitled to 2 weeks. It is up to you whether you pay it or not but you may find that she will claim for the additional week if you do not.

If you require any further information please do ask. If i have answered your question I would be grateful if you would give my answer a positive rating. Many thanks.
Expert:  Nicola-mod replied 4 years ago.
Hello,

Just a quick reminder, there is an unrated answer waiting for you here from the Professional.

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Thank you,
Nicola