Employing a carer?

You’ve decided to stay in your home and hire help. Once you’ve found the employee, what legal steps should you take? Sue Brown and Adrian Hoggarth are here to offer their expert advice…
What should an employment contract contain?

Carers, whether they visit daily or live in with their patients, are in most cases employees who have a legal right to a written statement of their employment terms. Typically, a contract of employment will be agreed that will set out the rights of the employee and also their obligations and the duties they are expected to perform in their role. Terms will include the hours of work, the specific duties they are to perform and details of the amount of notice required to terminate the employment.

What rights does my carer have?

There are various rules surrounding the number of hours that carers are permitted to work. The Working Time Regulations entitle carers to a host of legal rights concerning working time. These include:

  • 5.6 weeks' annual leave per year.
  • 11 consecutive hours' rest in a 24-hour period.
  • A 20-minute rest break if working longer than six hours.
  • One full day off each week.
  • Working a maximum of 48 hours on average per week, although individuals may choose to work longer.
  • A limit of eight hours in any 24-hour period for night workers, plus an entitlement to regular health assessments.

An employer can request carers to take paid holiday on particular days, provided they have given the carer appropriate notice. For example, a carer required to take one week off should be given at least two weeks' notice.

How does pay work out if my carer lives with us?

A carer must be paid at least the National Minimum Wage, which is currently £4.98 an hour for employees aged between 18 and 20 years old, and £6.08 for those aged 21 and over.

If a carer lives with their employer, the accommodation provided can count as part of the carer's pay, and it will also count towards the National Minimum Wage, known as the accommodation offset.

From October 2011, the maximum an employer can count towards the National Minimum Wage is £4.73 per day. The accommodation offset applies if the accommodation is provided in connection with a carer's employment contract, or if occupying the accommodation is necessary to enable the carer to be able to do their job.

If someone other than an employer provides accommodation, but there is a connection between the employer and the landlord, an employer will still be deemed as providing accommodation under National Minimum Wage rules.

Should I have an insurance policy?

Employers have duties towards their employees, particularly in relation to their health and safety at work. Carers are entitled to expect to work in a safe environment. An employer needs to obtain liability insurance to cover any claims for personal injury. Insurance can also be arranged to cover claims brought in the Employment Tribunal.

Who is responsible if something goes wrong?

The carer would be responsible for providing treatment to a reasonable standard (eg, following the instructions for prescribed medication). If they failed to do so and the client suffered illness or injury as a result, the carer would be liable in the tort of negligence, and probably in contract, being in breach of an express or implied term (to provide care to a reasonable standard). However, an individual carer is unlikely to have insurance to cover such a liability.

What happens if medical care is required in an emergency?

A carer dealing with a medical emergency would be liable only to the extent of using reasonable skill within the scope of their experience and/or training. If the carer is a trained nurse a higher standard would be expected than of an untrained carer, and a nurse would be likely to have insurance to cover such a liability.

Susan Brown is Head of Professional Negligence and Adrian Hogarth is Head of Employment at City of London-based legal firm Prolegal: 020-7743-6700, www.prolegal.co.uk.