Introduction
It is very important to issue the right contract to people who work for you. This factsheet explains with examples how to decide what kind of contract to issue.
Zero hours, bank, flexible, casual, or permanent contract
The working arrangement you have with your Personal Assistant (PA) will influence what contract you should give them and what employment rights they have.
The main question you need to ask yourself when thinking about what employment contract to give is:
Is there a mutuality of obligation? In other words, will you rely on your PA to work regular hours and is the PA expecting to work regular hours?
To help you work this out, take a look at the following case studies:
Case study one
Susan employs PAs with her Direct Payment to provide respite and additional support to help her care for her young disabled son. She wants to employ a PA to provide extra support while her son is on school holidays. The PA she has in mind is her friend’s daughter who may be able to do some hours when she is home from university depending on whether she gets time.
This case study refers to casual or irregular work.
If someone does casual or irregular work and most of the statements below apply to them, it’s likely they are defined as a ‘worker’:
- they occasionally do work for you
- you don’t have to offer them work and they don’t have to accept it –they only work when they want to
- you are thinking in terms of ‘casual’, ‘freelance’, ‘zero hours’, ‘as required’ or something similar
- they have to agree with your terms and conditions to get work (either verbally or in writing)
- they are under the supervision or control of you as their employer
- they can’t send someone else to do their work
- the employer deducts tax and national insurance contributions from their wages
- the employer provides materials, tools or equipment they need to do the work
Casual or irregular workers effectively provide employers with a pool of people who are ‘on-call’ and can be used when the need arises.
Working this way may suit some PAs who want occasional earnings and are able to be entirely flexible about when they work. However, the unpredictable nature of working times means that it won’t be for everyone. If you are considering taking on people on an irregular, casual basis, it’s important to be aware of your responsibilities as an employer and to set out the terms of any contract clearly.
Workers are entitled to certain employment rights, including:
- getting the Living Wage or National Minimum Wage – depending on their age
- protection against unlawful deductions from wages
- the statutory minimum level of paid holiday
- the statutory minimum length of rest breaks
- not to work more than 48 hours on average per week or to opt out of this right if they choose
- protection against unlawful discrimination
- protection for ‘whistleblowing’ (reporting wrongdoing in the workplace)
- not to be treated less favourably if they work part-time.
They may also be entitled to:
- statutory maternity pay
- statutory paternity pay
- statutory sick pay
- statutory adoption pay
- shared parental pay.
Workers are usually not entitled to:
- minimum notice periods if their employment will be ending (e.g. if an employer is dismissing them)
- protection against unfair dismissal
- the right to request flexible working
- time off for emergencies.
- statutory redundancy pay
If the PA you are going to employ is a ‘worker’ you may want to use employer template 4.3(c) Worker Agreement. This will help you confirm the conditions under which you may be able to offer the PA work.
Case study two
Michael has a disability and leads a busy life. He has a core team of PAs doing set hours but also needs additional PAs to work each week but the hours need to be flexible.
The hours are going to be regular but used very flexibly. For example, the PA may work 15 hours one week, ten hours the next and 20 hours the following week. These hours may be in the morning, afternoon or evening depending on what Michael is doing in that particular week. There is an obligation to provide these hours and there is also an obligation for the PA to work. The timings of the hours are mutually agreed.
This case study refers to regular work.
If someone does regular work and most statements below apply to them it is likely that they are known as an ‘employee’. An employee is someone who works under an employment contract:
- they’re required to work regularly unless they’re on leave (e.g. holiday, sick leave or maternity leave)
- they’re required to do a minimum number of hours and expect to be paid for time worked
- a manager or supervisor is responsible for their workload, saying when a piece of work should be finished and how it should be done
- they can’t send someone else to do their work
- the employer deducts tax and national insurance contributions from their wages
- they get paid holiday
- they’re entitled to contractual or statutory sick, maternity, or paternity pay
- they can join the employers pension scheme
- the employer’s disciplinary and grievance procedures apply to them
- they work at the employers premises or at an address specified by the employer
- their contract sets out redundancy procedures
- the employer provides the materials, tools and equipment for their work
- their contract, statement of terms and conditions or offer letter (which can be described as an ‘employment contract’) uses terms like ‘employer’ and ‘employee’
If your PA is an employee you may wish to use Independent Lives’ employer template 4.3(a) Example employment contract (written statement of employment particulars).
If most of the points above do not apply, you should work out if the person is self-employed. Please use factsheet 7.2: Self-Employment to help with this.
Important
If the nature of the work changes over time then you must review the contract accordingly.
A zero hour contract sets out the terms of the relationship between an employer and a casual worker. It is so called because it is intended for use where an employer wants to be able to engage the worker on a genuinely ad hoc, as required, basis and there is no guarantee of work from the employer, but the worker is expected to be available for work if/when offered. To this end, it offers flexibility for both parties and can be useful if you need PA support on an informal or irregular basis.
However, it is often not clear whether your PA is a casual worker or an employee and this may lead to issues with regard to the PA’s rights and protections.
Despite which contract you actually use, it is important to consider what actually happens in practice to ensure that the PA is working under the correct status. It may be that over time the working relationship has moved from that of casual worker to an employee, for example, if a pattern of offering regular work becomes more and more frequent.
On the basis, if you are in any doubt about the status of your PA or your PA raises concerns about their employment status, you should, in the first instance refer to our factsheets for guidance. If you are still in doubt it may be necessary to seek independent legal advice. In this case you may wish to contact ACAS or your local Citizen’s Advice office for guidance.
Case study three
Susan’s PA left University and started to work more hours for Susan every week. The PA really liked the regular hours and the security of the wages and Susan found the PAs support invaluable.
The nature of the relationship has changed and the contract needs to be reviewed.
In the eyes of the law the PA may now be considered an employee and therefore all associated statutory employment rights will automatically apply.
If you need support to review your PA contracts please give Independent Lives a call on 01903 219482.