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Employing Personal Care Workers

Premier Advocates > Employing Personal Care Workers

Employing Personal Care Workers

For many disabled or elderly people often they need assistant so they resort to hiring personal assistant or care workers, when hiring people can sometimes bring a unique and challenging employment relationship.

Sometimes relatives or budget holders find themselves taking on the role of employer for the first time, many employers are very uncertain of the law and their  responsibilities and legal obligation that this will entail

As a new employer the person you have just hired need to have a clear instructions on their duties and what is expected of them in the domestic role as they may be uncertain of their rights and role that is expected of them.

Every employee has the right to be treated with respect and dignity; there is also a legal obligation for the employer to make sure that the workplace is a safe and healthy environment place for them to work i.e. to prevent harassment and bullying in the workplace.

If you are having trouble with your employer try talking to them and explain how you feel.  Decide what you want to say and have it written down i.e. what has been happening and why you object to it.  Always be polite and stay calm sticking to the facts.

If for some reason you feel unable to talk to your employer, try talking to other care workers and ask them to speak on your behalf, this is good as well if they also witnessed what has been happening.  Try to get support talk to your family or friends even try to get some advice from an independent source you could even speak to your local county council.  Have records of all the incidents which will help you when you have to recall any of the incidents at a later date.

If this does not resolve the problem then you can put in a formal grievance.

Shopping for my employer:

It is always good practice to sit with your employer on regular intervals to go through your job role; this will help both parties to understand their roles and if there needs to be any improvements and also what is working well.  If you don’t have a good communication between both them this is when sometime misunderstands can occur and when conflicts might arise.  It is always good to have an honest and open conversation with your employer if ever a problem does arise, this will help to get things sorted out.

Set aside time to talk to your employer go through your role and coming to some agreement about checking and recording what has been asked of you regarding money given to purchases  items or paying bills.  Receipts need to be provided and kept in a safe place for a set period time just in case of any future dispute may arise.  If you are collecting money for your employer i.e. benefits or pension etc there needs to be established procedures in place of how and when this should be done and what happens to the money, most benefits and pensions can now be paid straight into a bank account which would make this less problematic.

Extra duties added:

If your employer is asking you to do extra tasks i.e. dog walking, look at your written terms and conditions to see what type of duties are listed, if you do not have a written terms and conditions try to recall what it was agreed to when you accepted the role.  If this extra role is classed as a domestic duty, but you don’t think it does and you are reluctant to take on this duty.  Have an informal talk with your employer explaining your reasons i.e. that walking the dog will take you away from other duties.  You and your employer might be able to come up with a compromise agreement.

If this informal talk does not resolve the issue then the employee would have to put in a formal grievance always put a formal grievance in writing.

Working and being pregnant:

Make sure you inform your employer this is always recommended to do this in writing.  Your employer should always look at your job role and do a risk assessment making sure you and the baby are not at any risks, if the employer finds that there are some risks then they should make changes to make sure you and your baby are kept save.  If as part of your role you have to lift someone your employer should provide a hoist to help lift the person, this type of machinery can be hired from physio or even an occupational health therapist can help with the lifting.  If for some reason it is not possible for you to do your job safely your employer might ask you do other duties or even ask you to stay at home until the time that it will be safe for you to continue with your job role, if this happens then you will receive your normal rate of pay during this time.

It might be an idea to speak to your midwife to see if there are any risks that could affect your pregnancy, this might highlight any concerns that you might need to inform your employer.

Am I an employee or self-employed:

Employees usually have a employment contract which can also be known as contract of service, these are usually written down, you can still be employed without a written contract.

Here are some signs that might show you are an employee:

  • There is a disciplinary policy and you are covered by this
  • You work at the home of the employer and use all there tools and equipment
  • The employer pays your national insurance and tax, these are deducted straight out of your wages
  • You work for one person/business and not a number of different customers
  • The person who you work for informs you of when and how to do your job
  • You do the job yourself you can not send anyone else in to do the job .

Factors that will identify if you are self employed: 

  • Invoices are sent to the employer after you have done the job
  • You have agreed a set price for the job and any additional costs are your responsibility
  • It is your decision as to when and how to do the job
  • You can send other people to do the job and that person reports back to you and you pay them
  • You provide services for more than 1 person

If I employ 2 care workers/personal to work 3 days per week 8am-8pm and 3 on call sleeping nights from 10pm-8am can this be done?

The Working Time Regulations provide rights to:

  •  There is a limit on hours worked on a night shift this is averaged at 8 hours in a 24 hour period, night workers are entitled to regular health assessments
  • Are entitled to 1 day off each week
  • If you are working for longer than 6 hours you are entitled to a 20  minute break
  • Have to have 11 consecutive hours rest in any 24 hour period
  • Entitled to 5.6 weeks paid leave each year
  • There is a limit for each worker which is an average 48 hours per week although a worker if chooses to they can work more

If the worker is under 18 years old but has finished school there are different rules that will apply

If you are a care worker and mainly work nights then your employer should offer you regular free health assessments to make sure that you are fit to work.  It might be useful to speak to occupational health and get some advice.  Regular checks might identify any health and safety risks to night working.  The Health and Safety Executives (http://www.hse.gov.uk) can provide advice with risk assessments.

After having an operation and going into a rest home to recover, can I insist on my personal care worker have this time off as a paid holiday period:

This will all depend on the contract agreement and the length of time you will be away.  You can ask your carer to take this time as a paid holiday on the particular days but giving them enough notice.  You will need to be quite specific as to when you would like them to take the leave and the notice period has to be twice as long as the period of time required to be taken, i.e. if you require your care to take 3 week off then you would have to give them 6 weeks’ notice.

There is another option is to lay off the care worker.  If you are going to do this there needs to be a specific clause in the contract of employment which will allow you to lay someone off without pay and to do this lawfully, if this is not in the carers contract then you would have to get an agreement in writing stating that they would not be paid their normal hourly rate for this period of time off.   During this period you would have to pay your employee what is known as a guarantee pay which is a lower level of pay.

If you as the employer you are going to be away for a very lengthy time then you might think of making the carer redundant by terminating their contract.  If the carer has been in your services for more that 2 continuous years or more, they will be entitled to the redundancy pay as well as notice and any outstanding holiday pay.

Always try to discuss the situation with the care worker this will help keep them up to date with what is happening.  Explain the options that are available for you as an employer maybe the employee is flexible and willing to accommodate the situation i.e. maybe the employee can take this period off as they may be able to get another temporary job from another employer.

What will happen if the employer dies is the employee entitled to redundancy pay and notice:

If the employer dies this would be classed as a frustration contract, this means that on the day the employer dies the contract will end.  If the employee has worked for the employer for 2 years and over then they will be entitled to have notice period and statutory redundancy, unless the Executor of the estate offers to renew the contract within 8 weeks.

If the employee is entitled to redundancy pay and any outstanding holiday and even wages these would normally be paid out from the estate of the employer.

As an employee it might be useful to speak with the executor of the estate to find out what is happening and when you can be expected to get paid.

Are care workers entitled to time off on bank holidays and paid overtime?

Care workers are entitled to 5.6 weeks holiday a year but the law does not stipulate that this includes bank holidays.  Having paid time off for bank holidays will depend on what has been agreed between both parties.  There may be days when in the year that you know you do not need the carer i.e. Christmas when family come to visit think about writing this in the contract as that for the employee can be taken as a must annual leave.

If as an employer you need to have a care worker everyday of the year, you will at some point have to think about getting cover for when your carer takes their leave.   This will prove to be more expensive on bank holidays so you might want your regular carer to have the bank holidays as part of their regular hours and take their annual leave another time.

There is no obligation to pay overtime rates on a bank holiday this will depend on the agreement that both parties have agreed before the care worker accepted the position.

This agreement should be written in the employee’s terms and conditions of employment.

Having problems with the care worker:

If your carer is turning up late and never informs you, this can make the employers life very difficult leaving them unable to get themselves washed or dressed.  The first step would be to speak to the employee explain the impact on you, highlight the difficulties of their action is having on you.  Sometimes this will bring to light problems that the employee is having i.e. taking children to school, the employee is ill or their child is ill and they have no one else to look after them.  You as the employer may be able to alter their hours to try to accommodate these issues that have been uncovered.

It is very important that the employee knows how important it is that they turn up to work on time.  Always have things in writing i.e. what is expected for them to do if they are unable to get to work on time, i.e. call the employer if you are going to be late.  Have everything in writing what improvements that is required or any changes that has been agreed.

If the problem keeps happening with no signs of the employee not changing then as an employer you could take a formal action i.e. disciplinary.

  • Make sure you provide the employees with the opportunity to appeal
  • Deciding on the appropriate action
  • Allow the employee to be accompanied to the meeting.
  • Having a meeting to discuss the problem
  • Inform the employee of the problem

Having employed a personal assistant she insists she self employed?

All employees work under a contract.  These contracts should always be in writing, you can still be employed without a written contract.

Here are some signs that might be an employee:

  • You would be covered by a disciplinary
  • You work at the employers property and use all there equipment
  • You do not pay your own Tax or National Insurance contributions, these are automatically taken out of your wages
  • You work only for one employer and not for a number of different employers
  • The employer you work for will tell you what to do and how to do you job
  • The job role is only yours, you cannot send anyone else to do your job

If you are self employed there are some factors that they are in business for themselves.

Here are some signs of self employed status: 

  • You would send invoices  to the employer for the work that has been carried out
  • You have agreed a set price for the job and are responsible for any additional costs that may arise
  • It is your decision when and how to do the work
  • You can send another person to do your work, you are responsible for this person and they report to you and you are responsible to pay them
  • You provide a service for more than 1 person .