When recruiting specialist carers it is always important to find the right people, both in terms of skills and experience. However, when the person they are to be caring for is a family member, and where that care is to be provided in the family home, other factors are also important. Families want people they are comfortable with having in their home and who are sensitive to the family’s values, culture and identity.
In making decisions about who to recruit, how to manage the care team and what to do when something doesn’t work out, there are employment law considerations which need to be considered alongside the family’s views and preferences.
Finding the right carer
When building a care team, families are naturally going to want to be able to find the best person, or people, available. This may mean looking at a wide range of different candidates and applying some kind of selection process.
Choosing someone because they have the right skills or more relevant experience than another candidate is absolutely fine and to be expected. However, where families are looking at more subjective factors such as which candidate would be the best “fit” for their family, they need to be careful to ensure decisions aren’t made which could lead to allegations of discrimination.
For example, it is perfectly reasonable to expect the carers to be sensitive to any values, beliefs, traditions or customs which the family may have. It would be risky to say that the carers must hold the same beliefs as the family, though. Similarly, requiring a carer be able to speak a particular language to ensure they can properly converse with family members may be reasonable, but to require the carer to be of a particular race would not.
If recruitment decisions are made on the basis of personal characteristics, families could find that they face discrimination claims from unsuccessful candidates. It is therefore important that all recruitment decisions are made on the basis of suitability for the role.
Bringing in a carer from outside the UK post-Brexit
Another factor to consider when looking for the best candidate is immigration and who has the right to work in the UK. This has become more of an issue since Brexit, as European nationals no longer have the automatic right to work in the UK.
All employers are required to check that everyone they recruit has the right to work in the UK; this applies just as much to families and deputies employing carers as it would do to large corporates.
Previously, European nationals had the right of free movement and could work in the UK freely. All that they needed to prove this was an EU passport. This has now changed and employers need to carry out an online check with the Home Office. European nationals who were in the UK by 31 December 2020 had the right to apply for settled status and, provided they did this by 30 June 2021, they will have the right to work. However, if they didn’t apply for settled status in time or if they didn’t enter the UK until 2021 (or haven’t yet entered the UK and are applying from overseas), they will not be able to work without firstly obtaining a visa. Visas are also required for individuals from any other country.
For some specialist roles a skilled worker visa may be an option but this requires the employer obtaining a licence from the home office and sponsoring the individual. This comes with a number of duties which many families are unlikely to want to deal with. Instead of direct recruitment, families may therefore find it preferable to appoint some specialist staff via other organisations.
Carers’ employment rights
Having recruited a care team, all carers should be given a contract setting out their main terms and conditions and this must be provided to them by the time they start their role. There are specific details which must be included in this document such as salary, holiday, working hours, benefits and notice periods.
Families also need to ensure the working arrangements offered to carers meet minimum employment law rights and obligations.
For example, all workers must be given paid annual leave, minimum daily and weekly rest breaks and must on average, work no more than a maximum 48 hour week unless they have opted out. Continuity is important for a family so it is understandable that ideally the same carer / small group of carers would provide support 24/7. However, planning needs to take place to ensure there is appropriate cover to allow for breaks to be taken.
Where carers are required to stay at the family home overnight, families need to consider whether the carer is actually required to carry out any work or whether they can sleep and only work if something unexpected happens. This will affect what pay the carer is entitled to.
How we can help
As employment law specialists, we can provide guidance in relation to recruitment, right to work checks, managing and documenting the working arrangements, and dealing with any concerns if they arise.