Do you use carers?

Did you know you could you be their employer?

Could you be a carers employer without knowing it, update on emplyment law

In 2014 there were approximately 6.5 million people in the UK who were caring for a family member, friend or partner who were either ill, elderly or disabled (or a combination). These figures are continuing to rise and as people are living longer than ever, this is only set to rise further.

As such, whilst some individuals are cared for within residential care homes, others are looked after in their own home often by a specialist team of carers. How many in this situation have stopped to ask themselves who employs the carer? Are you, unwittingly, the employer?

In general terms if the carer is paid through an agency then the agency are likely to be deemed the legal employer. However, if the carer is paid for by the individual or family, then they are likely to be found to be the employer. In terms of the latter, the carer will attain employment protection rights and, as such, the individual or family will need to ensure that they are adhering to the legal requirements.

The employer (i.e. the individual or family) will need to ensure:

  • PAYE is operated where applicable – i.e. income tax and national insurance contributions are deducted and employer’s National Insurance contributions are paid;
  • Auto enrolment rules are adhered to, if applicable, in respect of the carer’s pension;
  • Eligibility of the carer to work in the UK is checked and failure to do so could result in penalties;
  • Qualifications of the carer are checked to ensure they have the necessary certificates to fulfil the work;
  • A Disclosure and Barring Service check is undertaken;
  • National Minimum Wage rules are met – currently for an individual over the age of 21 to 24 this is £6.70 per hour and £7.20 for the over 25s for a full rate chart click here;
  • If the carer has the choice to work more than a 48 hour average week they can sign an opt out agreement;
  • The minimum holiday entitlement of a full time employee is 28 days paid holiday per year including public      and bank holidays;
  • An employee is entitled to be paid statutory sick pay of up to 28 weeks in any three year period;
  • To give a statutory notice period, which is a minimum of one week for each complete year of service is given; and
  • Employer’s liability insurance is in place.

As an employer, the individual or family is also at risk of potential claims being brought against them in the Employment Tribunal. For example, if a carer with a minimum of two years length of service were to be dismissed there could be a claim for unfair dismissal or constructive unfair dismissal.

Claims for discrimination can also be a risk to the employer and as there is no length of service required for an employee to bring a discrimination claim; this places the individual or family at risk even prior to a carer being employed. For example, a claim could be brought on the basis that the carer was not employed for the role due to one of the protected characteristics (i.e. sex, age, race, religion, disability, sexual orientation). As awards are not capped in the Tribunal for discrimination claims, it is important to ensure that the individual or family do not find themselves in this position.

As such, it is essential that the employment relationship is understood from the outset and, if the individual or family are legally the employer, they understand the legal ramifications of this.  

Should you require any legal advice in respect of this article, or another employment law query, please do not hesitate to contact Nicola Cockerill or the Employment Law Team on 01733 882800.

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This article has been prepared for general interest and information purposes only; it does not constitute legal advice and should not be relied on as such. While all possible care has been taken in the preparation of this article, no responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by the firm or the authors.