Welcome to this HR Blast. In this blast we look at HR matters for those of your staff who employ people at home (carers, cleaners, nannies, gardeners and even drivers at times). You will probably also have staff who employ people indirectly as a result of some voluntary work they do e.g. sports clubs, village hall committees, community centres etc.
You might ask how this is relevant to you, the employer. It’s simple, when your staff mess up managing or paying their domestic workers and it all gets nasty and legal, then that’s when they get distracted from their day job, suffer from stress and sometimes it even makes them so ill they go off sick. And that’s when it becomes your problem.
The problem is that people across the UK are employing domestic workers without really knowing anything about their responsibilities as an employer. You may even have read in the press recently about a few celebrities and politicians etc. who have been fined over issues such as unfair dismissal, no right to work in the UK, failure to pay holidays etc.
At Jaluch, we often get asked to support with the management or dismissal of domestic workers, but for every one we get asked about, there are probably 100 more we don’t get asked about. So, in this HR Blast we provide a quick summary of the typical issues employees face when employing people at home. It’s a scary summary if you are a ‘worst case scenario’ sort of person, but there is simply no way to avoid the fact that UK employment legislation is onerous and complex and makes no allowances for those who only employ domestic workers.
Please do feel free to circulate this to your staff in order to raise awareness and hopefully as a result, reduce some of the stress and anxiety that arises when things go wrong.
- Written statement of terms of employment for employees must be issued within 8 weeks. Failure to do this could cost £928-£1856 at tribunal.
- Be really clear (precise) about the hours to be worked and whether any payment will be made for overtime hours. Put it in writing.
- Be clear about their holiday entitlement and how you will manage it. All employees are entitled to a minimum 28 days per year. Do not even think about discouraging them from taking it. That is a dangerous road to travel.
- Be aware that we do have legislation that limits hours that can be worked at night time (normally 8 maximum) and also maximum weekly working hours (48). (see the Working Time Regulations 1998)
- Asylum and immigration responsibilities include checking your job applicant has the right to work in the UK and keeping a photocopy of proof of their right to work (this usually means taking a photocopy of their passport and a document detailing their NI number) BEFORE they start work. Fines per person for failing to check right to work in the UK and employing illegal workers are up to £20,000 so this is not one to mess up. ( to read about work visas for non British workers – click here)
- Check your household insurance policy includes employing domestic workers as you are required to have appropriate insurance in place for all employees. This often won’t cost you anything but you do need to check with your current household insurer. (click here)
- All the laws that apply to larger employers also apply to you however unfair that may seem.
- Want to treat them as self employed to avoid PAYE hassles and employment rights? Be very careful. If they only work for you, or work mostly for you, a tribunal could find that they are employed rather than self employed. If this happens you will probably be liable to pay a sum equivalent to the NI and tax you should have deducted from their wages during their employment. In addition, they will then have a host of employment rights and be able to make claims against you if they wish to (e.g. holiday pay, no contract of employment, notice pay, redundancy pay, unfair dismissal etc).
- Fines that are issued by an employment tribunal will not take into consideration the fact that you only employ one person or do not have a company behind you to cover the legal costs.
Managing the day to day
- Health and safety is your responsibility. Think about lifting, climbing, driving, hazardous conditions etc. and ensure you have done the necessary risk assessments (click here)
- The national minimum wage applies as much to you as to any other employer. Failure to pay at the NMW level can result in you not only having to repay the unpaid wages, but an additional penalty of up to £20,000. Again, this is not a law to be complacent with.
- Disabilities – you have a responsibility to understand and seek to make reasonable adjustments for employees who have disabilities. This includes those with diabetes, cancer, physical disabilities etc. You have a responsibility to consider adjustments to enable them to continue working. You cannot just dismiss someone, or refuse to employ them in the first place, without considering making adjustments.
- Pensions – all employees who earn more than £10,000 will need to be entered into a pension from 2017/2018 (depending on when your staging date is). The fines for failure to comply with the rules or pay contributions can be up to £50,000 (depending on the nature of the breach) so again this is not legislation to ignore. (click here)
- Maternity leave, paternity leave, shared parental leave, family emergency leave – your employees have rights to these just as they would if employed by a large company (click here)
- Much as it is tempting when you hit a last straw moment to say ‘just get your things and go’. You cannot legally do this – or, at least if you choose to do this, be aware that it’s a very risky and potentially very expensive route to take.
- If you do have a last straw moment, the person could claim wrongful or unfair dismissal, the compensation for which could be very significant. ACAS sets out clear guidance on the process to follow if your dismissal is to be fair. We suggest you read this carefully if you want to dismiss – even for redundancy. (click here)
- Dismissing someone can never be instant. Even for gross misconduct. Dismissal takes time, weeks even, so do not get caught out. Getting a dismissal wrong could cost you thousands of pounds and it is not unusual for the legal costs to defend a tribunal claim to exceed £15 or £20K.
- Redundancy – this is when the job ceases to exist (often happens with a carer if person they are caring for passes away or when the role is discontinued (e.g.a decision is taken to no longer have a cleaner) then essentially the role becomes redundant. You can’t though just say goodbye to your employee. There is a process to follow. Again check out the procedure with ACAS, who run a free helpline for employers so use it and stay safe.
A few of the reasons you cannot dismiss:
- Employee becomes pregnant
- Employee brings/threatens claim of discrimination
- Employee gets on your nerves
- Employee threatens to whistleblow over your failure to deduct NI or pay minimum wage etc.
- Employee reaches age at which you believe they should retire. The point at which they retire is their decision to make and not yours.
There is a lot of information here and it is scary, but first and foremost those employing domestic workers should get advice and read up about how to manage the issue they are facing. ACAS should often be the first port of call and as suggested above, provides a free helpline.
We hope you found this HR Blast informative. Managing staff is enormously complex and responsibilities do not diminish just because you are only employing one person so be careful. The information above is just a summary. We haven’t even included information and advice around discrimination laws for example. We think this is a good starting point but we do advise you to read up more in order to keep yourself safe from litigation and any possible fines.
If you would like further guidance on any of the issues raised above then speak to one of the Jaluch team on 01425 479 888 or email us with your query.
The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.