What are the legal issues when employing private carers?
If you hire someone to carry out care and support for you at home – paid by you personally or with direct payments – you may legally be classed as an employer. This brings with it certain responsibilities.
First, you need to establish if you’re legally the employer. If you employ an individual directly as a personal care assistant, who works solely for you and carries out your instructions, then you are probably the employer (see the provisos below). If you 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 you’re an employer, there are several things you must do.
You’ll 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 2018–19, the lower earnings limit (LEL) is £116 per week. For more information, see the HMRC website.
Register as an employer
If you’re employing someone, you will have to register with HMRC as an employer. Read more on how to do this on the HMRC website.
Carry out employee checks
Equalities legislation limits the circumstances when you can ask health-related questions before offering someone a job. Further information is available from ACAS.
Before employing someone, you 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. You must:
- see the applicant’s original documents (such as their passport)
- check that the documents are valid with the applicant present
- make and keep copies of the documents, and record the date you made the check.
You can find out more about employing staff on the gov.uk website.
Individual personal care assistants are not regulated and don’t have to be registered (where workforce registration is in force). However, if you’re employing a personal care assistant, you should check that the personal care assistant has had relevant training (for example, QCFs (or their predecessor, NVQ qualifications), in lifting and manual handling.
Do a Disclosure and Barring Service (DBS) check
You may also wish to ensure that the personal care assistant has undergone a criminal record check, through the DBS, which operates in England and Wales, Disclosure Scotland, which operates in Scotland or AccessNI, which operates in Northern Ireland.
You can accept a previously issued certificate, but you 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.
How much you must pay in salary depends on the age of your carer or personal care assistant. From 1 April 2018, a carer aged 25 or older must be paid the National Living Wage (NLW) of £7.83 per hour. The National Minimum Wage (NMW) applies to younger employees and is £7.38 an hour for people between the ages of 21 and 24 years and £5.90 per hour for people aged 18 to 20 years.
Do be aware that to get reliable experienced personal care assistants, you may need to pay well above the National Minimum Wage.
Working time and holidays
Most employees can’t be required to work more than an average of 48 hours a week unless they expressly agree otherwise with you. Almost all employees are also entitled to 5.6 weeks’ paid holiday per year. See the gov.uk website for details.
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 £92.05 a week for the 2018– 9 tax year. Gov.uk has further information about SSP.
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 care assistant has been working for you for more than two years, they can only be dismissed if the dismissal is deemed to be fair. For example, if they’re incapable of doing their job or have committed some form of misconduct. ACAS offers more information about notice and dismissal.
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.
Find out more about employers’ liability insurance on the government’s Health and Safety Executive website.
Other things to do
It’s also good practice to do the following:
- Make sure that you request, and take up, references (preferably written) from their previous two employers.
- Meet potential candidates in person: use our article meeting and interviewing potential private carers to help you interview them.
- 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’s good practice for you to draw up a contract before the employee starts that is signed by you and the personal care assistant/helper and which includes all the required information. Sample contracts are available on the gov.uk website. It’s best to take legal advice on this, or your 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 care assistant is aged between 22 and the State Pension age, and earns more than £192 per week on your ‘staging date’, you need to provide a pension scheme. For more on the staging date and compulsory employer contributions, see the Pensions Regulator’s guide.
Gov.uk also offers more information about employing staff for the first time.
Other aspects to be aware of
Employing private carers to take on certain tasks can give you more flexibility and choice. However, there are certain things you should be aware of before hiring help:
- You will take on employer responsibilities and legal obligations.You may have to deal with disciplinary issues and possibly the dismissal of a person.
- You could be left without any replacement cover if the helper is absent from work, whereas an agency will usually find cover.
- If you’re not using an agency, you won’t have the added protection of staff training and vetting, or complaint procedures to resolve any issues.
If you want to avoid the responsibilities of being an employer, one alternative is to use a service broker who can act as an intermediary. Brokers help to arrange the support that you need, and assist with recruitment and employment issues. Your local authority or local Age UK might be able to recommend a broker in your area.
If you receive funding from your local authority, you shouldn’t have to pay to use a brokerage service. The local authority should provide this, although they may charge self-funders to use the service.
Introductory agencies/matching services
You can instruct a private introductory agency to find and recruit a suitable carer or personal care assistant. To do this, you would enter into a contract for recruitment services and should check the fees the agency charges for this service. If the recruitment process is successful, the worker would be employed by you, as the employer.
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