Staff shortages, recruiting the next generation of carers, resourcing from overseas – employment law within the residential care system can be a huge area for employers to navigate. In this article, Jessica Clough, chartered legal executive in Boyes Turner’s employment team, focuses on some of the fundamental areas for care sector employers.
Start with contracts
These are the foundation of the employment relationship. As a result, it is vital to make sure the contracts you provide to your staff:
Convey the appropriate type of employment status. There are potentially serious employment law and tax implications for getting this wrong.
Accurately reflect the hours the individual will be working in practice. Often there is a desire to express the employee’s contractual hours as vaguely as possible in the belief this will allow more flexibility, but it often leads to confusion or even a belief by the worker that hours of work are “negotiable”.
Are sufficiently comprehensive for if things go wrong.
Are provided on or by the first day of work.
Include clauses making employment conditional on continuing to have the right to work in the UK and a satisfactory DBS check (if applicable).
Are kept up to date throughout the employment relationship as status, hours, holiday entitlement and pay rates can change over time. Hours worked regularly will, over time, become contractual through custom and practice.
Right to work and visa compliance checks
Perhaps an obvious point, but right to work checks should be done before the individual starts work. EU workers will need to show they have either permanent residence or settled status, and those with a temporary right to work will need to have their visa status checked. From April 2022 all visas must be checked digitally.
Employers should check that any staff on student visas are not exceeding their maximum permitted hours of 20 hours / week during term times. Any more than this is a breach of their visa conditions. Overtime, sleeping nights and on-call hours (if at the place of work or sufficiently restrictive) will count towards their total weekly hours. We recommend requesting a copy of their university term dates at the start of each academic year to enable compliance.
Key health and safety duties
It’s essential that as a residential care employer, your leadership team understands your key health and safety duties:
Encourage staff to take their Holiday entitlement each year to protect staff health and wellbeing. Employers should regularly remind staff to use their leave entitlement before the end of each holiday year, or it will be lost (unless their contract permits some carry over to the next year).
Ensure staff get sufficient Breaks: they should comply with Working Time Regulation 1998 (WTR) requirements or, if this is not possible, offer sufficient compensatory rest instead. Employers should check that staff who are working for other employers are still getting sufficient rest breaks between roles and not exceeding the maximum permitted amount of night working. Remember, sleeping nights and on-call shifts will count as working for WTR purposes (if at the place of work or sufficiently restrictive).
Do you need legal advice?
If you require legal advice on contracts, visa checks or any other legal duties mentioned in this article, please get in touch today with our employment or immigration team.
At Boyes Turner, our team of experts provide tailored solutions to suit your specific requirements that are right for your business and your people.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.