1 Employing private individuals: the legal issues
If you or your relative hires someone to carry out care and support for them at home – paid for by themselves or with direct payments – you or they may legally be classed as an employer. This brings with it certain responsibilities for either you or your relative, depending who is the employer. We shall assume in this case it is your relative who is the employer, for simplicity, although you may decide that you would prefer to take on the employer’s responsibilities rather than your relative.
First, you need to establish if your relative is legally the employer. If they employ an individual directly as a personal assistant, who works solely for them and carries out their instructions, they are probably the employer (see the provisos below). If they employ an individual via a business, such as an agency, which has several employees and carries out work for more than one customer, the business will be the legal employer.
If your relative is an employer, there are several things that they must do:
1. Operate PAYE
Your relative will need to operate PAYE (deduct Income Tax and National Insurance contributions from their pay and pay employer’s National Insurance contributions) if the employee earns over a certain amount. For 2017-18, this lower earnings limit (LEL) is £113 per week. For more information, see the HMRC website.
2. Register as an employer
If your relative is employing someone, they will have to register with the HMRC as an employer. Read more on how to do this, and when it must be done, here.
3. Carry out employee checks
Equalities legislation limits the circumstances when your relative can ask health-related questions before offering someone a job. Further information is available from ACAS.
Before employing someone, your relative must check that they are legally entitled to work in the UK. It’s a criminal offence to employ someone you know, or have reasonable cause to believe, is an illegal worker.
Your relative must check the person is allowed to work for them in the UK before they employ them. Your relative must:
- See the applicant’s original documents (like their passport)
- Check that the documents are valid with the applicant present.
- Make and keep copies of the documents and record the date they made the check.
Your relative can find out more about this on this page of the GOV.UK website.
Individual personal assistants are not regulated and do not have to be registered (where workforce registration is in force). However, if your relative is employing a personal assistant, they should check that the personal assistant has had relevant training (for example, QCFs, or their predecessor NVQ qualifications, in lifting and manual handling). Although your relative is not legally required to do so, you may also wish to ensure that the personal assistant has undergone a criminal record check, through the Disclosure and Barring Service (previously the Criminal Records Bureau), which operates in England and Wales, Disclosure Scotland or Access NI.
4. Pay wages
How much your relative must pay in salary depends on the age of their carer or personal assistant. From April 2017, a carer aged 25 or older must be paid the National Living Wage (NLW) of £7.50 per hour. The National Minimum Wage (NMW) applies to younger employees and is currently £7.05 an hour for people between the ages of 21 and 24 years and £5.60 per hour for people aged 18 to 20 years. The minimum hourly salaries are revised and increased yearly at the beginning of April. Find out more on this page of the GOV.UK website.
CRB check (now called a DBS check)
An employer can accept a previously issued certificate but must check that:
- the applicant's identity matches the details on the certificate
- the certificate is of the right level and type for the role applied for.
To find out more about these checks, go to this page on the GOV.UK website.
Please note that to get reliable experienced personal assistants, you may need to pay well above the National Minimum Wage.
5. Working time and holidays
Most employees cannot be required to work more than an average of 48 hours a week unless they expressly agree otherwise with your relative. Employees are also entitled to 5.6 weeks’ paid holiday per year (28 days for a full-time employee), which includes public and bank holidays.
6. Statutory Sick Pay (SSP)
There is no statutory limit on the amount of time that employees may take off due to sickness or injury. If eligible (principally have done at least one day’s work for you, are sick for four full days or more in a row (including non-working days) and earn at or above the Lower Earnings Limited), the employee will be entitled to SSP for up to 28 weeks in any three-year period. The rate of SSP is £89.35 a week for the 2017-18 tax year. For further details, see this page on the GOV.UK website.
7. Notice and dismissal
After one month’s employment, employees are entitled to one week’s minimum period of notice, rising by one week for each year of service up to a maximum of 12 weeks. Once a personal assistant has been working for your relative for more than two years, they can only be dismissed if the dismissal is deemed to be fair, for example if they are incapable of doing their job or have committed some form of misconduct. For further details, see this page on the ACAS website.
8. Protection from discrimination
Job applicants and employees have the right not to be discriminated against because of age, disability, gender reassignment, marriage or civil partnership, pregnancy or maternity, race, religion or belief and sex or sexual orientation.
Employers must take out employers’ liability insurance and have the option to add public liability insurance, which provides cover for personal injury or damage to property belonging to a third party following negligence by an employer. To find out more about employers’ liability insurance, go to this page of the Government’s Health and Safety Executive website.
10. Other things to do
It is also good practice to do the following:
- Make sure that you request, and take up, preferably written references from previous employers.
- Write a simple job description for the person, detailing their specific duties, so they will be clear about what’s required of them.
- Employees have the right to receive a written statement of their terms of employment within two months of starting work. This information can be contained in a contract and it is good practice for you or your relative to draw up a contract before the employee starts that is signed by the relative and the personal assistant/helper and which includes all the required information. Sample contracts are available online here. It is best to take legal advice on this, or your relative’s local council might also offer advice on what to do.
- Consider pensions. New pension rules require employers to give workers the chance of joining a workplace pension. If a personal assistant is aged between 22 and up to state pension age and earns more than £192 per week on your ‘staging date’, you need to provide a pension scheme. For more on your staging date and compulsory employer contributions, see the Pensions Regulator’s guide and website.
For more information about employing staff for the first time, see this page on the GOV.UK website.
Which? guide to helping loved ones in later life
If you are looking for ways to help a relative stay living at home for longer, or need to find out about the different care options available, this downloadable guide explains your choices and how to find out more. It offers an introduction to choosing sheltered or residential care, plus advice on choosing the best products to aid independent living.