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In terms of their strength and depth, they are absolutely first-class. CHAMBERS UK


 

Home care in the spotlight – employing a carer direct

07 November 2013


Leonard Cheshire Disability, the UK’s largest voluntary sector provider of services for disabled people has today (Monday 7 October 2013) criticised the 15 minute care visits used by over 60% of councils in England and Wales. It has also announced it will not bid for any further contracts which include 15 minute care visits.

The charity has commissioned a report – Ending 15 minute care and it’s publication coincides with the Report Stage of the Care Bill in the House of Lords on Wednesday 9 October 2013. Leonard Cheshire Disability is calling on members of the House of Lords to back an amendment to make care visits 30 minutes long.

The Care Bill aims to reform the law relating to care and support for adults and the law relating to support for carers. Also to make provision about safeguarding adults from abuse or neglect, to make provision about care standards, to establish and make provision about Health Education England, to establish and make provision about the Health Research Authority, and for connected purposes.

Whether you are trying to make your own care arrangements or you are doing so on behalf of a friend or relative this news or your experiences of ‘the system’ may encourage you to consider employing a carer directly, so what do you need to know.

Live in carers are almost certainly going to have ‘employee’ status. This means they will enjoy the highest level of protection under employment legislation. Their rights will include being given written particulars of employment, statutory sick pay, written reasons for dismissal and notice on termination. Where they have at least two years’ continuous service, they will also benefit from the right not to be unfairly dismissed and, in a redundancy situation, they will be entitled to a statutory redundancy payment.

Regardless of what the employer calls any particular carer, where the circumstances of the relationship suggests that the carer is being treated as an employee i.e. the carer lives in, works all hours and personally provides his or her services to the employer, then an employer will have difficulty in proving that the carer is not an employee where, for example, the carer is paid against invoices submitted and therefore claims that it is self-employed.

‘Working Time Regulations’

Live in carers will also have rights under the Working Time Regulations (‘WTR’). These include 5.6 weeks’ paid annual leave (the equivalent of 28 days per year) where the carer works full-time, adequate daily and weekly rest breaks and rest periods. However, since they are domestic servants in a private household, unlike normal workers, they do not benefit from the following:

  • The maximum average 48 hour working week
  • The limit of 8 hours work in a 24 hour period
  • Health assessments in respect of night work
  • Adequate rest breaks for monotonous patterns of work

‘National Minimum Wage’

For adult carers (aged 21 +) the current national minimum wage is £6.31.

‘Consequences on death of employer’

If an employer dies, the carer’s employment contract will be frustrated. This means the carer’s contract automatically terminates on the date that the employer dies, unless the carer is re-employed/engaged by the personal representative (‘PR’). The carer will not be entitled to notice pay, but if he/she has more than two years’ continuous service he/she will be entitled to a statutory redundancy payment. The carer will also be entitled to receive pay in lieu of any accrued but untaken holiday.

A statutory redundancy payment can be calculated using the carer’s age, number of completed years’ service and gross weekly pay (subject to a maximum sum of £450).

Where the PR requires the carer’s help in dealing with the deceased employer’s affairs, for example, selling the house, the PR may ask the carer to continue to work for a short period under its direction without renewing or re-engaging the employment. However, the PR should be aware that where the carer continues to be treated as an employee by being kept on in the house and paid the same salary for a longer period than expected, there may be a risk of an implied renewal of contract so that the PR effectively ‘steps into the employer’s shoes’. To avoid this situation, the PR would be well advised to write to the carer to confirm the arrangements as soon as they are known.

 

This article is not intended to be a full summary of the law and advice should be sought on all issues.

 

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