Legal considerations when choosing your childcare provider
A parent has a number of important decisions to make in relation to choosing who will care for their child when they are not able to do so, especially if they intend to return to work.
This article considers the legal issues concerning the traditional child care providers, namely: nannies, child-minders and nurseries.
Nannies
Generally speaking a nanny is your employee and as such in law an employer-employee relationship exists between you[1]. It is important that all of the necessary paperwork is in order, including a comprehensive employment contract and a detailed disciplinary procedure.
Once you have located a suitable nanny you should conduct an interview with them (or a series of interviews). You should be mindful that all potential nanny’s have the right not to be discriminated against during the recruitment process due to age, gender, race, religion or sexual orientation.
As an employer you are responsible for accounting for your nanny’s income tax and national insurance contributions. In addition, you must ensure that the amount you pay your nanny meets the National Minimum Wage (certain exceptions apply to live in nanny’s). As an employer you must provide your nanny with financial documents such as payslips and a P60.
Your nanny is entitled to certain benefits because of the employment relationship, for example holiday leave, maternity arrangements, provisions in relation to sick leave and redundancy. Importantly a nanny has rights under employment law; therefore close attention should be paid to disciplinary procedures and dismissal. Should you find yourself in a situation where you need to terminate the employment of your nanny, legal advice should be taken from a specialist Employment Law Solicitors.
Nanny’s do not have to be registered or regulated and therefore special care should be taken in drafting a contract between yourself and your nanny. It is important to clearly detail the duties you expect of your nanny and the standard of conduct you require.
Key points to consider Re: Nannies
When considering employing a nanny it is important that you:-
- Recruit fairly and do not discriminate
- Prepare a comprehensive written contract
- Make National Insurance and Income Tax contributions
- Seek legal advice concerning any disciplinary action or dismissal of your nanny
Childminders
Childminders who look after children under the age of 8 years old for more than 2 hours a day for money must be registered with Ofsted[2] and are regularly inspected by them. Childminders are also regulated by Ofsted and therefore must comply with the requirements set out by them[3]. Should a childminder not meet the standard required then they will not be initially licensed or may be later disqualified.
When considering using the services of a childminder for your child you should check their certificate of registration, which should be visible, and whether or not they have ever been suspended from the register. In addition, it is important to enquire as to the level of insurance cover that your childminder has obtained. Registered childminders are required to have insurance to cover death, injury, public liability, damage and other loss. If your child has special physical or learning needs these should be accommodated by your childminder. All childminders must have a current first aid certificate and training from an approved training course.
It is likely that you will have to sign a written contract with your childminder; however, in the absence of a written contract a verbal contract can still be enforced. Ofsted obliges childminders to make alternative provisions for children should they not be able to provide childcare.
Childminders must not discriminate against providing childcare based on factors such as race, religion, home language, family background, gender, disability or learning disabilities.
Childminders are obliged to have a written statement of procedures and a written complaint procedure available to you, which you should ask to view. In addition, childminders must provide information on the activities that your child will undertake whilst in their care. Often shown as activity day books and reports.
Should you need to make a complaint against your childminder this should be done in writing or by way of an email directly to your childminder. Your complaint must be fully investigated and a written response, or by email if requested, provided to you within 28 days of your complaint. Complaints for breaches of the Ofsted standards can be made to Ofsted.
Key points to consider Re: Childminders
- Regulated by Ofsted
- Must display certificate of registration
- Must have a written statement of procedure
- Must have written information concerning activities
- Must have a current first aid certificate
- Must have training from an approved training course
- Written complaint procedure
Nurseries
Nurseries must be registered with Ofsted and are also regulated and inspected by them. Complaints, however, concerning your child’s welfare can be made to Ofsted, but in the first instance should be made internally through the nursery’s complaint procedure.
Since September 2012, nurseries have had to comply with the Early Years Foundation Stage. This essentially puts the focus of early year care on developing the child and puts the parents and family at the heart of the system. One of the objectives of the new framework is to ensure that those within the industry offer a quality service.
The relationship between yourself and the nursery will be a contractual one. It is important that you carefully read the contract and terms and conditions supplied to you by the nursery before signing them. Careful attention should be paid to the terms and conditions in relation to the nurseries policy concerning bank holiday’s, notice periods, payment dates and collection of interest, cancellation fees, liability for payment due to closure (e.g. adverse weather), fees for late collection and what happens if your child is unwell. Should an issue arise in relation to the contract you should contact a Solicitor who specialises in contractual dispute. Please see our article on understanding these terms.
Summary Table
| NANNY | REGULATED CHILDMINDER | NURSERY | |
| LEGAL RELATIONSHIP | EMPLOYER-EMPLOYEE | REGULATED CONTRACTUAL RELATIONSHIP | REGULATED CONTRACTUAL RELATIONSHIP |
| REGULATOR | NONE | OFSTED* (*for those with any children under 8 years old) | OFSTED |
| TERMINATION CONSIDERATIONS | UNFAIR DISMISSAL,CONSTRUCTIVE DISMISSAL,REDUNDANCY | BREACH OF CONTRACTCOMPLAINT PROCEDURECOMPLAINT TO OFSTED | BREACH OF CONTRACT |
| LEGAL REMEDIES | EMPLOYMENT TRIBUNAL | CIVIL LITIGATION, DAMAGES, COUNTY COURT, STATUTORY ENFORCEMENT – SUSPENSION, WARNING, DISQUALIFICATION, PROSECUTION | CIVIL LITIGATION, DAMAGES, COUNTY COURT |
| FURTHER CONSIDERATIONS | INCOME TAX;NATIONAL INSURANCE CONTRIBUTIONS;EMPLOYMENT BENEFITS | OFSTED REGULATIONS | TERMS AND CONDITIONS |
| IMPORTANT DOCUMENTS | – CONTRACT- DISCIPLINARY PROCEDURE | – CERTIFICATE OF REGISTRATION.- FIRST AID CERTIFICATE- INSURANCE CERTIFICATE- WRITTEN STATEMENT OF PROCEDURE
– WRITTEN COMPLAINT PROCEDURE |
– CONTRACT- TERMS AND CONDITIONS- COMPLAINTS PROCEDURE |
[1] Nanny’s who look after children from different families can be self-employed and therefore must account for their own taxes. It would still be prudent to have a written contract between yourselves.
[2] Depending on the age of the children your childminder will have to be registered on the Early Years Register and/or the Childcare Register
[3] Including provisions under the Early Years foundation stage framework since September 2012
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