Should you insist your Nanny shows up for work during the current government lockdown?
Can you legally justify making your Nanny attend work despite the government’s guidance?
We’re all acutely aware of the government’s announcement of a 3 week UK wide lockdown which was issued on 23 March 2020, and the possibility that this will be extended for a further period this coming week. We’re also all aware that the message is clear:
Other than ‘key workers’ and ‘essential businesses’, the government has been clear: people should only go to work “where this is absolutely necessary and cannot be done from home’”. Ok, yes we know a Nanny’s work cannot be done from their own home but stay with me…..
Employers must consider:
Are you / your partner ‘key workers’ and critical to the COVID-19 response? The government has issued a comprehensive list of ‘key workers’ which includes:
Other frontline health & social care staff including volunteers
Support & specialist staff
Producers and distributors of medicines & equipment
999 and 111 critical services
Police & support staff
Fire & Rescue National Crime Agency
Prison & Probation staff
Journalist & broadcasters
See the government website for the full list.
If the answer is yes, you are a ‘key worker’ the government guidance would consider your Nanny to be an ‘essential worker’ and required to work.
If the answer is no, you are not a ‘key worker’ the next question you should be considering is, can you ensure the recommended social distancing is implemented throughout your entire home and can be afforded to your Nanny for their entire shift and while carrying out each and every one of the tasks required of them?
As an employer you should always carry out a risk assessment before employing anyone to work in your home. If you don’t normally then during this current crisis it should be a given. You should assess the risk to yourself, your entire family, the risk to your Nanny and members of your Nanny’s household.
You should also give immediate and serious consideration to your requirements during the current lockdown and government guidance – now you are working from home, how many people do you physically need to take care of your children? Yes, working from home while attempting to home school or care for babies and/or toddlers can be a challenge but we’re talking about exceptional circumstances right now where everyone is having to cope with additional stresses and strains. If we all adhere to the rules, we’ll be out of this situation more quickly and safely.
All employers, and Nanny employers are no different, have a legal obligation to provide a safe working environment for their employees. If you “force” your Nanny to go into work, against the government or medical advice and there is a genuine health and safety risk from being required to attend work, this could amount to a breach of your duty of care to your Nanny. It may also constitute a breach of the implied term of mutual trust and confidence, resulting in a claim against you for constructive unfair dismissal and/or disability discrimination if your Nanny is a ‘vulnerable person’. Furthermore, should your Nanny contract COVID-19 as a result of you requiring them to come into work, they could potentially have a personal injury claim against you. Will your insurer pay up?
Comply with government guidance at all times
Ensure their Nanny’s safety at all times (social distancing/travel to and from work/mixing households)
Access government support schemes where available and if applicable. See https://www.gov.uk/government/publications/guidance-to-employers-and-businesses-about-covid-19
Continually consult government websites for updates www.gov.uk
Take legal advice if necessary.
Employers MUST NOT:
Scare their Nanny into coming into work
Ignore social distancing guidance
Discipline their Nanny who cannot attend work because they are self-isolating, have childcare difficulties or are a ‘vulnerable person’ or have care responsibilities for a ‘vulnerable person’
We are living through unprecedented times. However, employers should remember, the principles of employment legislation still apply and where they are ignored, employers are likely to face grievances and possibly tribunal proceedings resulting in large compensatory payouts. Food for thought indeed.
Tricia Pritchard, Managing Director
BAPN, the Association for Professional Nannies