Are you ready to employ a carer directly? The legal issues to consider

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By Richard Gvero, Joint Senior Partner, Head of Commercial and Head of Employment.

Many care recipients are moving away from care agencies, and hiring carers directly to ensure consistency of care, particularly where the care recipient is elderly and perhaps suffering with an illness. In this situation, having the right carer on board, with whom you feel comfortable, that can provide the companionship you may need and may even live in your home, is crucial.

Whilst employing a carer directly may feel like the most viable option for you – moving away from a care agency brings with it important obligations and responsibilities. This is particularly true where the carer works for the recipient personally, on a regular basis, on direct instructions and perhaps also lives in the property. In this scenario, the carer recipient is almost certainly going to be the carer’s legal employer.

As an employer, there are several legal obligations that you will have. The following is a summary of the main responsibilities to consider.

1. First and foremost, you will need to register as an employer with HMRC to enable you to operate PAYE – assuming the carer’s salary is beyond the minimum threshold.

2. You will need to ensure that you have appropriate employer liability insurance in place and perhaps public liability insurance to cover yourself in the event that the carer injures themselves whilst working at your home.

3. You will need to conduct appropriate checks to ensure that the carer is legally entitled to work in the UK. It would also be advisable to check the carer has appropriate qualifications, to obtain references from the carer’s former employers and to request that the carer undertakes a CRB check.

4. Within the first two months of employment, you will need to provide the carer with a contract of employment setting out their minimum terms of employment which will include their pay, entitlements to sick pay, working hours and holiday. Although as of 6 April 2020, this will be a requirement from day 1 of employment.

5. As a result of new workplace pension rules, you will be liable to set up a workplace pension for the carer and to make appropriate contributions towards their pension – over and above the carer’s normal pay. There is no exception for a private individual who employs a carer directly.

6. Workers have protection under the Working Time Regulations which govern working conditions in relation to matters such as the maximum working week, rest breaks and holiday. Therefore, you will need to factor into your costs, the carer’s entitlement to 5.6 weeks paid holiday. Although, due to the nature of the carer’s role it is likely that the carer will be exempted from the maximum 48-hour working week.

7. Most carers will be entitled to the National Minimum Wage – due to increase to £8.21 in April 2019. However, this rate does not apply to live-in carers who are treated as a member of the family and are not charged for food and accommodation.

8. You will be liable to pay the carer Statutory Sick Pay if they cannot work due to sickness. The entitlement only kicks in on the 4th consecutive day of sickness and the rate is £92.05 per week and payable by the employer for up to 28 weeks.

9. As an employee, the carer will be entitled to a minimum period of notice which is limited to 1 week within the first 2 years of employment and is extended by an additional week for each complete year of service up to a maximum of 12 weeks for 12 years’ service. Although, where necessary, you could agree longer notice periods in the employment contract.

10. Once your employed carer has acquired 2 years’ service, they will qualify for unfair dismissal rights. This means terminating their employment will not be so straightforward and the length of time it may take to terminate safely will depend on the reason for it. In the event of a redundancy, they will also be entitled to a Statutory Redundancy Payment.

11. The carer will be protected from discrimination under equality legislation applicable to employment and this protection kicks in as early as the recruitment stage. There are specific ‘protected characteristics’ and they include sex, age, disability, race, religion, pregnancy or maternity, gender reassignment and sexual orientation.

12. Finally, where the carer you employ is required to live at your property to enable them to better perform their duties, a service occupancy agreement will be required. This is a separate contract (terms of which can also be included in the carer’s main contract) which sets out the basis on which the carer resides in the property. It ensures that the carer does not obtain any tenancy rights and makes it clear that the right to occupy is limited to the duration of the employment contract.

Therefore, employing a carer directly will require some forward planning.Before rushing into it, it is important that you fully understand the responsibilities you will be taking on, and that all appropriate measures are put in place, to avoid unexpected costs and liabilities.

Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.