FAQs: For Professional Deputies Who Hire Carers

1. Do you have to retain the current agency carers?
2. What information are you entitled to receive from the agency about those carers?
3. What are your legal obligations under TUPE when the agency worker is going to transfer?
4. What do you need to include in new direct recruitment contracts?
5. Can you change the carers’ terms?
6. What are the main risks that you face as a Professional Deputy?
7. Can you dismiss the existing carers to replace them with new ones?
8. If something goes wrong, can you be sued?
9. Who else can help you manage the employment process?
10. Where would the Employment lawyer come in?

Do you have to retain the current agency carers?

This will depend upon whether the agency carers form a regular and essential part of your client’s care package.

If they are a dedicated part of the care package and you decide to bring their delivery of the care package in-house, the carer’s employment could transfer to the Estate under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). This means the carers would retain their continuity of service and the benefit of their existing terms of employment. Any potential claims would pass to the estate.

The TUPE relations are complex and specialist advice should be sought.

What information are you entitled to receive from the agency about these carers?

The agency is expected to provide Employee Liability Information which sets out the carers’ names, their dates of employment, their hours, information about their pay and their holiday and sick pay entitlement.

This information is intended to allow you to understand which carers are ‘in scope’ to transfer to the Estate, and to explain their terms of employment so that you can give effect to their contractual rights from day one. It is also designed to highlight the costs and any risks you would face.

In the event that the agency fails to provide correct information, the Estate would be entitled to pursue claims against the agency.

In addition, it is always advisable to request each carer’s full HR file, pay records and, where available, the agency’s working time records.

What are your legal obligations under TUPE when the agency worker is going to transfer?

As the transferee, your obligations can be summarised in three parts:

1. To enable the agency to inform and consult properly, the agency is entitled to expect you to set out in writing any measures that you envisage taking once the care package moves to direct recruitment. Importantly, “measures” has a wide meaning and may involve:

• Changes to rotas
• Changes to management or supervision arrangements
• Changes to the holiday year or arrangements for taking holiday
• Changes to sickness reporting
• Changes to pay date or method of payment
• Change to pensions
• Mandatory training or similar requirements

2. Within 2 months of the direct recruitment taking place, you should write to the carers to confirm that their employer has changed and set out any new terms. Many of our clients issue a statement of employment particulars (often described as a ‘contract’) to each carer, setting out the whole of their terms of employment.

3. Where you as a Professional Deputy recruit staff in preparation for a move to Direct Recruitment (e.g. Team Leaders who will manage the incoming care team), thought will need to be given to informing and consulting with those direct recruits.Carers transfer to you with the terms they enjoyed before direct recruitment.

What do you need to include in new direct recruitment contracts?

Contracts need to comply with Part 1 of the Employment Rights Act.

Employers are also required to adopt certain minimum policies.

Particular thought needs to be given to:

• Working hours and pay – and whether they will comply with the National Minimum Wage legislation
• Travel time
• Sickness absence reporting
• Short-time working and lay-off clauses – for example, if your client goes into care or on an organised trip, and the carers’ services are not required during that time
• Confidentiality provisions

Can you change the carers’ terms?

It is always open to you to improve the carers’ terms, e.g. increasing rates of hourly pay. Many Professional Deputies are willing to do this to gain loyalty and to motivate staff, or simply to harmonise the carers’ pay. Often, the cost of the salary increase may be less than the money paid to the agency per hour. You would need to factor in additional National Insurance Contributions and Employer Pensions Contributions.

Reducing or worsening terms is problematic and expert advice would need to be sought. At worst, changing terms detrimentally could expose the Estate to a risk of claims, even if the benefits package overall appears better. Under TUPE, you are not allowed to harmonise terms to your employee’s detriment.

What are the main risks that you face as a Professional Deputy?

One of the main risks is the agency providing inaccurate Employee Liability Information about the carers. If the information they provide is incomplete or inaccurate, you may inadvertently breach the carers’ contracts which may expose the Estate to claims.

In the care industry, one of the most common risk areas relates to working time, particularly for workers undertaking sleep-in shifts. That is because many agencies pay a reduced hourly rate to carers undertaking sleep-ins, allowing only the normal hourly rate when the carer had to be awake for 30 minutes or more. This could give rise to underpayment of National Minimum Wage and increased holiday entitlements.

For those carers who undertake a mix of shifts and earn sufficiently generous rates at other times, it may be possible that the shortfall arising from sleep-ins can be absorbed over the whole pay period. It is advisable to take legal advice on this issue.

Can you dismiss the existing carers to replace them with new ones?

Carers with two years’ continuous service have unfair dismissal protection, meaning that any dismissal must be fair. This means that you would need to have a fair reason to dismiss and follow a fair procedure. Usually this would involve looking at whether a genuine redundancy situation exists . This would depend upon how the new care package will differ from the agency’s, warning and consulting employees, and eliminating suitable alternative employment.

Shorter serving employees could be dismissed without the need for a fair reason or process – unless they are on maternity leave, in which case special considerations may apply.

In all cases, the carers should receive notice pay and accrued holiday pay upon dismissal.  Longer-serving employees may also be entitled to statutory redundancy payments.

If something goes wrong, can you be sued?

Yes.

For the purposes of anti-discrimination legislation, you would be regarded as an “agent” of your client. Therefore, if you make a decision or engage in conduct that a carer regards as discriminatory, the carer could name you as a Respondent in a claim of direct discrimination, harassment, discrimination arising from disability, or victimisation.

It is therefore always sensible to take advice before embarking upon steps to dismiss.

Who else can help you manage the employment process?

It is always sensible to have a pay roll provider that is experienced in dealing with the complex ways in which carers are paid.  The same pay roll provider may be able to assist you with auto-enrolment for pensions.

You may wish to use Case Managers or HR Consultants to deal with performance management, sickness absence management, disciplinaries and grievances. Team leaders will often deal with return to work meetings.

Where would the Employment lawyer come in?

It is always sensible to take specialist employment advice before embarking upon direct recruitment. A lawyer can:

• Help you to identify which carers you are likely to inherit and on what terms
• Therefore, to identify the costs of employing and/or dismissing the carers so that you can make an informed decision about cost
• Provide information about ‘measures’ to the agency and seek to ensure their cooperation in providing the necessary information about the carers
• Draw-up contracts of employment to issue to the carers, following the change to direct recruitment
• Advise you on the options for dismissing carers or changing their terms and assisting you through the necessary process
• Advise on day-to-day HR issues as and when problems arise.

If you are a Professional Deputy who would like to find out more about how to hire carers, contact us today on 01273 609911, or email info@ms-solicitors.co.uk.