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Guide for Employers – Deputies and the Court of Protection

A deputy appointed by the Court of Protection may also be an employer. This is typical when a care team is directly engaged by the deputy as opposed to via a care agency/provider. It is therefore important to be aware of the responsibilities that come with being an employer and ensure you are not falling short of the law.

In this guide we have covered the following key matters that employers should bear in mind:

  • Employment Status
  • Types of Contracts
  • Working Time Regulations
  • Policies and Procedures
  • TUPE

Employment Status

For employment law purposes it’s important to correctly identify the status of those you have engaged to provide work. These are:

  • Employees – someone who works under a contract of employment.
  • Workers – any individual who works for an employer, whether under a contract of employment or any other contract, and undertakes to do personally any work or services, but does who not qualify as an employee.
  • Self-Employed Contractors – a worker is any individual who works for an employer, whether under a contract of employment, or any other contract and undertakes to do personally any work or services but does not qualify as an employee.

It is essential the correct status is assigned to an individual because of the different rights that are afforded to each. Please see the Table below:

Employment RightsEmployeesWorkersSelf-Employed
Unfair Dismissal Protection Unfair Dismissal Protection Employees
Holiday PayHoliday Pay EmployeesHoliday Pay Wprkers
Maternity, Paternity, Adoption leave and pay*Paternity Employees
National Minimum WageNational Minimum Wage EmployeesNational Minimum Wage Workers
Working Time Regulations Working Time Regulations EmployeesWorking Time Regulations Workers
Right to Request Flexible WorkingFlexible Working Employees
Statutory Redundancy PayStatutory Redundancy Pay Employees
Protection Against DiscriminationDiscrimination Protection EmployeesWorkers Discrimination Protection Self Employed Discrimination Protection

*“Qualifying Employees” are more widely defined in the context of statutory maternity/paternity/adoption pay and includes all those whose earnings are liable for National Insurance Contributions and therefore a worker could qualify.

Types of Contracts

Every employer in England and Wales is obliged to provide employees and workers with a written statement of terms that contains the minimum information in relation to the conditions of their employment. This must be provided on or before day 1 of their engagement. Some employers will issue employees with a basic Section 1 Statement, which simply includes the terms that are required by law. However, such a contract is not suitable for every worker. Especially in the care industry, it may be that certain other types of contracts are more suited, such as:

Zero-Hours Contracts
Zero-hours contracts are a type of employment contract where the employer engages the individual as and when they have work available. This means there are no guaranteed hours or guarantee for work. The individual, in turn, has the right to decide whether to accept or reject the offer.

Please see our guide on our website which discusses the pros and cons of zero-hour contracts: Are zero-hour contracts legal in the UK? : Wilson Browne

Fixed-Term Contracts
A fixed-term contract is a kind of contract which contains provisions as to how employment will terminate, either by:

  • The expiry of a specified fixed term
  • The completion of a specific task, or
  • The occurrence/non-occurrence of a particular event.

Fixed-term contracts are useful when someone is needed for a specific task (e.g. to cover maternity leave) or where funding comes from an external source and might not be renewed.

Contract of Employment
There are different levels of employment contracts. Please see our guide on our website which discusses the different types: Types of Employment Contracts : Wilson Browne

It is likely that those involved in the care industry will need something more than a basic Section 1 Statement – typically the following terms should be included in the contract:

  • Confidentiality obligations, and
  • Data protection obligations.

Working Time Regulation

As an employer, you have obligations under the Working Time Regulations 1998. ‘Working Time’ refers to any period during which the worker is either working, carrying out their duties or at the employer’s disposal. The main points to note are:

  • You must take all reasonable steps to ensure that each worker’s average working time does not exceed 48 hours per week (please see 48 hour week opt-out below). This includes overtime and time spent ‘on call’ at the workplace.
  • You must allow workers 11 hours of uninterrupted rest per day.
  • You must allow workers 24 hours’ uninterrupted rest per week (48 hours’ per fortnight).
  • You must allow workers a rest break of 20 minutes when working for more than 6 consecutive hours per day.

48-Hour Week Opt-Out
If workers have signed a separate ‘opt-out agreement’, the limit on average working hours will not apply. Workers have the right to end these agreements on notice.

However, even if a worker has agreed to opt out of the limits, they cannot be required to work hours that create a reasonably foreseeable risk to their health and safety.

Employers should also ensure that they keep records covering the last two years showing which workers have opted out.

Night Shifts
The Working Time Regulations have special provisions for night workers. A night worker is any person who works for at least 3 hours between 23:00 and 06:00 on the majority of their shifts. It has been accepted that anyone who works one night shift in three shifts will be considered a night worker, whereas someone who only works night shifts on an ‘ad-hoc’ basis will not normally be considered a night worker.

In relation to night workers, employers must:

  • Take all reasonable steps to ensure night workers normal hours do not exceed 8 hours each day, on average, and
  • Ensure that no night workers who undertake work involving special hazards or heavy physical/mental strain work for more than 8 hours each day.

National Minimum Wage
It’s important to be aware that the National Minimum Wage (NMW) exemption which currently applies to domestic workers who reside in the family home of their employer and are treated as part of the family will no longer apply from 1 April 2024. The new NMW Regulations amend this position; this is of relevance to companions, and in particular to those who are provided either accommodation, meals and leisure activities and there is no current deduction from wages for it. Such workers must (from 1 April 2024) be renumerated at a rate no less than NWM.

Policies and Procedures

Whilst contracts will contain contractual terms, other information should be included in the form of policies and procedures. Typically, these should be made accessible within a staff handbook.

Health and Safety
If you are employing more than 5 employees, you will need a Health and Safety Policy. Failing to do so means the business could face criminal penalties.

Disciplinary and Grievances
If you have one or more staff members you must provide in writing disciplinary and grievance procedures. These procedures are usually referenced in the contract of employment with full details set out in non-contractual policies.

Our team can review your existing policies to ensure that they are up to date and fit for purpose. Alternatively, if you do not have any policies in place or you are simply looking to replace your existing policies, we have a fixed price package for clearly drafted, fully bespoke, up-to-date, core HR policies. The policies include absence management, disciplinary and grievances, equal opportunities, whistleblowing, harassment and bullying, family friendly rights and, health and safety.

TUPE - does this apply?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as ‘TUPE’) apply to what are known as ‘relevant transfers’ which can occur in a range of circumstances, namely where there has been a:

  • Business transfer, or
  • Service provision changes

Business Transfer
A business transfer is a where the identity of the employer changes. It is defined as a transfer of a business or undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity.

It will usually be more relevant for deputies to understand how TUPE applies to a service provision changes.

Service Provision Changes
A ‘service provision change’ can occur when a deputy:

  •  Outsources a care team, which was previously provided by direct employment, to a care agency;
  • Decides to cancel an outsourced care provision contract with an agency and directly employ carers; or,
  • Reassigns an outsourced care provision contract to a new provider.

For TUPE to apply in any of the above scenarios, there must be an organised grouping of employees who have the principal purpose of carrying out the transferring activities on behalf of the client. Please note that one employee can amount to an “organised grouping.”

Advice should therefore be taken as soon as a deputy considers making changes to any care packages which have already been implemented.

We have a guide on TUPE considerations which can be found here:  An Employers Guide to Tupe