One of the many benefits of having a direct payment is being able to employ people to provide care and support to help you live more independently.
The person employed by the individual employer is called a personal assistant (PA). A personal assistant undertakes a wide range of care and support tasks and can make a real difference to the independence of the person they care for.
If you or someone else employs staff to provide your support, the person acting as employer will have legal responsibilities and obligations; you need to be aware of these before agreeing to take up a direct payment. It is up to the employer to ensure that they are aware of, and comply with these responsibilities.
This page gives a brief summary of employers’ responsibilities and is for guidance only. It does not cover all situations and is not a full statement of the law. The contact list at the end tells you where you can get more information.
The information in this page gives a summary of the type of legal responsibilities you are likely to have. It is accurate at the time of writing, but you are strongly advised to check it for yourself, using the sources of information given.
In general, employees aged 18 and over are entitled to the following:
Further information can be found at GOV.UK - working hours.
Employers have a legal responsibility to check that their workers are eligible to work in the UK before employment starts. As an employer, you are responsible for verifying the documents provided by the person you want to employ and must take a copy of the documentary evidence provided (e.g. passport, National Insurance number).
Further information and lists of documentary evidence to work in the UK are available from the UK Border Agency.
The local authority must ensure that the person is aware of how to access Disclosure and Barring Service Checks (DBS – previously CRB checks) on individuals they wish to employ, for example by ensuring that a check has been made by the agency providing the service, the local authority, or by another body. Individuals cannot apply for DBS checks on other individuals, and the local authority should make people aware of this, and the importance of thorough checks and employment references in the recruitment process.
As an employer, you should only arrange a DBS check on a successful job applicant. You can’t register directly with DBS. Instead, use an umbrella body:
Employees who are employed for one month or more must receive a written statement of employment terms and conditions (a contract) detailing information such as hours of work, rates of pay, annual leave, notice and disciplinary procedures. This must be issued to the employee within the first two months of employment. Employees should also have a job description and person specification.
You will need to ensure that the rate you pay your personal assistant(s) conforms to the requirements of the national minimum wage announced on 1st October each year.
Further information and rates are available at GOV.UK minimum wage rates or HM Revenue and Customs or via Telephone: 0300 200 3300.
Jobs must be open to everyone regardless of race, colour, nationality, ethnic or national origin, disability, sex, sexual orientation or marital status unless there is a genuine requirement for the job.
Further information and codes of practice giving guidance about equal opportunities can be found on the Equality and Human Rights Commission website.
Most employers are required by law to ensure against liability for injury or disease to their employees arising out of their employment. It is important that you ensure that appropriate employer’s liability insurance is in place before your personal assistant(s) begin employment. This is to make sure that you are insured against any possible claims which may arise. Further information regarding employer’s liability insurance is available from the Health and Safety Executive.
When you employ personal assistants, you take on responsibilities for ensuring their health and safety whilst working for you. Further information is available from Workplace Health Connect or the Health and Safety Executive information line on 0845 345 0055.
By law, you must register with HM Revenue & Customs (HMRC) as an employer and operate Pay as You Earn (PAYE) on the pay of your employees. It is the employers’ responsibility to deduct the tax and National Insurance contributions from their wages and pay it to HM Revenue and Customs. Many people find it helpful to use a professional payroll service that can do all this on your behalf. You can pay for this service using your Direct Payment.
As an employer, you must also pay Employers National Insurance contributions for any of your employees whose earnings are over a certain level (this usually increases each year).
This sounds very daunting and many people find it helpful to use a specialised payroll service. Such services will take on responsibility for paying wages, statutory payments, tax and National Insurance, based on information supplied by you. However, you should remember that, as the employer, the responsibility for making the correct payments will still be yours. Further information is available from GOV.UK support for new employers.
If an employee is sick for four consecutive days or more, they may be entitled to Statutory Sick Pay (SSP) from you. If you are using a payroll service they will work out whether the employee is entitled to receive SSP and claim the money back from HM Revenue and Customs. Further information is available from GOV.UK HMRC.
Your employee will have certain rights if she becomes pregnant, such as statutory maternity leave, paid time off work for ante-natal care and up to 52 weeks statutory maternity leave. Depending on the length of time she has worked for you and her average earnings, she may also be entitled to statutory maternity pay up to 39 weeks. Further information is available from GOV.UK maternity leave.
If your employee’s partner is expecting a baby and your employee will be responsible for bringing up the child, they could have the right to statutory parental leave and in some cases statutory parental pay. Further information is available from GOV.UK parental leave.
Employers (including direct payment holders) will be required to comply with the duty to automatically enrol eligible workers into a qualifying workplace pension scheme and to meet the minimum contributions required by law. More information is available from The Pension Regulator.
‘All staff working in adult social care should be able to access and take part in learning and development so they can carry out their role effectively and deliver high quality care. Skills for Care knows that there is a strong business case for investing in qualifications and development of staff and that employers recognise this. The Workforce Development Fund is available to support employers to make that investment which benefits the organisation, the workers and those who need care and support.’ (Skillsforcare workforce development)
Employees who have been in continuous employment for more than one month and less than two years are entitled to at least one week’s notice of termination of employment. After two years’ continuous employment, this increases to one week for each year to a maximum of 12 weeks. So for example, if you have five and a half years continuous service, you will be entitled to five weeks’ notice. Further information can be found at GOV.UK handing in notice.
Employees have the right not to be unfairly dismissed. In most circumstances they must have at least one year’s continuous service before they have this right. Further information about dismissals can be found at GOV.UK dismissal or ACAS.
A good employer should set rules to benefit the employer and his/her employees. This should clearly indicate what conduct the employer considers to be acceptable and what action will be taken if the rules of conduct are broken. If you are employing a personal assistant you are advised to follow the guidance set out in the ACAS Code of Practice Disciplinary and Grievance Procedures when dealing with any disputes. Further information is available at ACAS or GOV.UK taking disciplinary action.
Should you need to make your employee redundant (e.g. if your needs change) they may be entitled to redundancy pay providing they have been in continuous employment for two years or more. The amount they will be entitled to will be based on the length of time they have worked for you, their age and the amount of weekly pay. Further information is available at ACAS or GOV.UK.
Further information on being an employer, aimed at people using direct payments is available at www.disabilitytaxguide.org.uk
The employing personal assistants toolkit guides you through the process of employing a personal assistant, what to do when they are working for you as well as helping you to understand your responsibilities as an employer and your legal obligations. There are some really useful templates that you can use such as job descriptions, application forms and contracts of employment.