Employment Law An Overview

Contents Defining the job and the work to be done Contracts Notice and termination Redundancy The Equality Act 2010 Holiday entitlements Sick and maternity pay

The Support Plan The person employing the PA will have had an assessment and a support plan drawn up This should form the basis for the work the PA will do in support of the person It might also identify assessment of risks From the care plan and the person’s needs, a Job Specification can be drawn up

Job description (or specification) What type of help/support will the PA provide Where will this be delivered What are the regular duties What other duties might be expected (how often will this happen) Does the work involve accompanying the person on trips, outings etc How would such extra duties be agreed

Contracts A contract of employment is an agreement between employer and employee and is the basis of an employment relationship. A contract is made when an offer of employment is made by the employer and then accepted by the employee. – A contract does not need to be written to be legally valid, but a written one will reduce the potential for disagreements later on. The Employment Rights Act 1996 requires employers to provide employees with a written statement of their main terms within 2 calendar months of starting work

A written statement must include: The employer’s and employee’s names The date the employment began How much and how often the employee will be paid Hours of work Holiday entitlement Entitlement to sick leave and sick pay Pensions and pension schemes The employer’s and employee’s entitlement to notice and termination

>continued Job title or brief job description Where the job is not permanent, how long it is expected to continue, or, if a fixed term contract, the date it will end. The place of work, or if working in more than one place, an indication of this, and the employer’s address [normal base]. Any collective agreements that may affect the employment A note about disciplinary and grievance procedures

Notice and Termination Both parties are entitled to a minimum period of notice of termination of the employment. – After one month’s employment, the PA must give at least one week’s notice. This does not increase with length of service. – The notice the employer gives to a PA starts at 1 week but this increases by one week with every year of service, up to a maximum of 12 weeks notice. – This is the statutory minimum. Both the employer and employee are entitled to a longer period of notice if it is stated in the contract Note that if a P.A. is dismissed because of gross misconduct, there is no need to give them notice or pay in lieu of notice.

Misconduct A disciplinary procedure will ensure structure and fairness in dealing with misconduct. Examples of misconduct from a P.A. could be lateness, rudeness or not keeping records properly. The normal procedure for dealing with misconduct usually takes 3 stages: – Verbal warning – Written warning – Final written warning, (this would normally remain in place for 1 year).

Gross Misconduct Gross misconduct is behaviour by a P.A. that is so bad that it destroys the employer/employee relationship and merits summary dismissal without notice or pay in lieu of notice. Examples of gross misconduct could be: coming to work under the influence of drink or drugs, stealing, harassment, racial abuse, neglect (this list is not exhaustive). A dismissed PA could take the Employer to an employment tribunal. You would have to show that your acted fairly and reasonably

Redundancy Redundancy is where an employee loses their job because the job they once did no longer exists. For PA’s employed by people receiving direct payments, this could be because that person may have:  Gone into a residential home and is no longer eligible to receive direct payments  Died  Moved to another area  Had their direct payments funding reduced, which means that they no longer have the money to pay the PA.

Maternity Rights If a P.A. works while she is pregnant, she has 5 basic rights : She is entitled to a risk assessment to ensure that her working environment does not pose a risk to her or the baby Paid time off for ante-natal care 26 weeks ordinary maternity leave and 26 weeks additional maternity leave Maternity benefits, either Statutory Maternity Pay or Maternity Allowance

>continued Protection against unfair treatment or dismissal. Dismissal purely on the grounds of pregnancy is automatically unfair, so is dismissal for redundancy. The PA must tell the Employer that they are pregnant at least 15 weeks before the week in which the baby is due. And tell the Employer as soon as possible when she would like to start her maternity leave. Providing evidence of when the baby is due, by completing a form called MAT B1

The Equality Act 2010 It is normally unlawful for an employer to discriminate against one particular section of society on the grounds of a “protected characteristic” such as race, age, disability, sex, religion, martial status etc; However, the Equality Act 2010 allows the employer to choose a worker of a particular sex where the essential nature of the job, or particular duties of the job, calls for a worker of a particular sex. This is called an Occupational Qualification.

When might this be justified? An Occupational Qualification might be necessary to preserve privacy and decency where a job is likely to involve close physical contact with a person who might reasonably object to the job holder being of a different sex to them Or to cope with some unique aspect of their client’s needs or behaviour

Advertising using the Occupational Requirement exemption Occupational Qualifications should be identified at the start of the recruitment process before the job is advertised: e.g. a female service user may only wish to recruit a female worker, due to the personal nature of the work. When advertising a job in this way, the advert needs to say that this restriction is an “Occupational Requirement under the Equality Act”.

Holiday Entitlements Workers are legally entitled to 5.6 weeks holiday per year. On a 5 day week, a worker would be entitled to 28 days holiday per year (5 x 5.6 = 28) On a 3 day week, a worker would be entitled to 16.8 days per year. Workers do not automatically get paid leave on public holidays.

Sick pay Statutory sick pay is paid to workers who are unable to work because they are sick. It is paid by the employer for up to 28 weeks. To qualify, the worker must be: Sick for at least 4 days in a row, (including weekends and bank holidays) and Earn an average of £107 per week. (April 2012)

Maternity & Paternity leave and pay These rights exist, and you should be aware of them. Both employers and PA’s should take advice at the time. [ This presentation is too short to cover any of this complex subject!! ]

Sources of help Care Match and Elite The Rowan Organisation Skills for Care Business Link ACAS DirectGov web site ( (if insured) Your Insurer