At some point your PA’s employment with you will come to an end. This will usually be because they resign, but it may be for other reasons such as redundancy or dismissal. When the PA leaves for any of these reasons there are certain processes which must be followed. The most important of these concerns notice periods and final payments (see below).
Notice periods in contracts
You will need to check the contract you have with your employee to see what notice periods are outlined.
Independent Lives’ example Employment Contract states that the PA is:
‘Required to give one month’s written notice to end your employment, except during the probationary period, which is referred to in section six.’
Section six – Probationary Period states that:
‘During the probationary period either party may terminate the contract by providing one week’s written notice. The employer may choose to provide a payment in lieu of the notice period worked’
If the Employer wishes to terminate the employment, other than for reasons of gross misconduct, the following notice should be given:
One weeks’ notice during the probationary period
After the probationary period:
- Employees with six months – two years’ service are entitled to two weeks’ notice
- Employees who have worked for more than two years are entitled to one week’s notice for each full year of employment, up to a maximum of 12 weeks’ notice
Giving notice with a fixed term contract
Even though a fixed term contract with your PA will end automatically, you should still give your PA notice, informing them that their contract will not be renewed. Notice should be given according to the notice periods outlined in their contract.
Notice pay
If your PA works the hours set out in their contract during the notice period they should receive their normal rate of pay. PAs are also generally entitled by law to receive a minimum rate of pay during the notice period even if they do not work, for instance because they are ill or because they are willing to work, but you do not give them any hours. If you want the employment to end immediately, you can make a payment instead of allowing the PA to continue working – a ‘payment in lieu of notice’.
However, you can only make this type of payment if the contract allows for this or your PA agrees to it. This type of payment should cover their wages until the end of the notice period together with the cash equivalent of ‘benefits in kind’, unless their contract says otherwise.
Reasons your PA might leave
Your PA has extensive rights arising from their employment contract and more generally under English law. You cannot simply ask them to leave without good reason. An important part of being a good Employer is to know when and how to end the employment relationship properly and lawfully.
If you do not end the employment appropriately you may have to defend your actions in an Employment Tribunal. If a judgement is made against you at an Employment Tribunal you risk incurring heavy fines.
The employment relationship can come to an end out of choice or necessity. There are five main ways that your PA’s employment might end.
1. During the Probationary Period
Your PA’s employment contract should clearly state that, during the Probationary period (usually the first six months of employment), either you or the PA can end the employment contract with one week’s notice. Once your PA passes their probation it becomes much more difficult to end their employment. For this reason it is vital that you include a Probationary period in your PA’s employment contract.
Shortly before the end of the PA’s Probationary Period you should meet with them to discuss how things are going. If you are happy with your PA at this stage you should confirm that they have passed their probation at this meeting.
If you are still unsure about how things are going you can extend your PA’s Probationary Period for another three to six months. The Probationary Period can be extended to up to one year in total, however, if you are still not sure about your PA after six months you should consider what is concerning you and whether the situation is likely to improve.
If you are still not happy with your PA at this stage, you can end their employment. If you do end your PA’s employment during their probation, you should give them a reason for this. Ideally you would meet with them to explain this reason.
2. Your PA resigns (‘hands in their notice’)
This is the most common way that people will leave your employment.
Your PA may hand in their notice verbally. However, they should make it clear to you that they are formally resigning. It is always a good idea to ask them to put their intention to resign in writing, stating:
- how much notice they are giving (it must be the minimum stated in their employment contract).
- when their last day will be
They must give you the right amount of notice stated in their employment contract. If the contract does not mention Notice Periods, by law, they must give one week’s notice if they have worked for you for a month or more.
Remember that:
- the PA’s resignation can’t be taken back, unless the contract allows it or you agree to this. You may not wish to agree if, for example, you have already made a job offer to someone else to replace your PA when they resign
- they should get their final pay on their normal pay day and they don’t have the right to ask for it any earlier
- as long as the PA has given notice in accordance with the terms of their contract, you must accept their resignation
Your PA may resign in order to avoid a disciplinary procedure, e.g. because they have committed an act of Gross Misconduct such as stealing from you. Whilst this can sometimes be the best outcome for everyone concerned, in certain situations you may need to let Independent Lives or Social Services know.
If you have any evidence that the PA who has resigned may cause a child or vulnerable adult harm, you should talk to Independent Lives or Social Services about whether the ‘Disclosure and Barring Service’(DBS) needs to be told about this.
DBS is an independent body that makes judgements about whether someone should be barred from working with children or disabled adults. It is a legal requirement for Employers to refer to DBS if they have evidence that their PA might cause harm.
3. Dismissal
If a PA has seriously breached their employment contract or has committed an act of gross misconduct you must suspend them on normal pay while you carry out an investigation. It is very important that you do not sack your PA ‘on the spot’. Having investigated fully you must then arrange to meet formally with the PA to conduct a disciplinary meeting.
Examples of gross misconduct include:
- verbal or physical aggression towards you
- putting you at risk of harm either through negligence or being incapable from drink/ drugs
- stealing from you
If you are contemplating a disciplinary process, please consult our Information and Advice Team on 01903 219482. In addition, essential information about Disciplinary procedures is available in factsheet 5.5: Disciplinary Procedures and Appeals.
As a DP Employer, if you dismiss or remove a member of staff or a volunteer because they have harmed a child or vulnerable adult or would have done so if they had not left, you must tell the Disclosure and Barring Service (DBS). Please talk to Independent Lives or Social Services if you think this may be the case.
4. Redundancy
You may find yourself in a situation where you need to make a PA redundant. A lawful redundancy situation exists if:
- you (as the employer) have ceased, or intend to cease, to carry on the business for the purposes of which the employee was so employed
- you (as the employer) have ceased, or intend to cease, to carry on the business in the place where the employee was so employed
- the requirements of the business for employees to carry out work of a particular kind has ceased or diminished or is expected to cease or diminish
- the requirements of the business for the employees to carry out work of a particular kind, in the place where they were so employed, has ceased or diminished or is expected to cease or diminish
If you are contemplating a redundancy situation please consult our Information and Advice Team on 01903 219482. In addition, essential information about redundancy procedures is available in factsheet 6.2: Redundancy.
5. If your PA leaves without giving notice
If your PA does this, they are likely to be in breach of their employment contract. You could pursue this through a small claims court but this is a costly process and is often quite stressful.
Exit Interviews
If your PA resigns, you may wish to ask them to attend an exit interview with you. You can use employer template 6.3 Exit interview form for this. An exit interview is a useful tool to find out if there are any issues that the PA had which caused them to leave.
Depending on what this is, you may wish to make adjustments to your staff management. It is especially useful if lots of your PAs leave so you can then see if there is a pattern forming.
Example
Three of your PAs have recently left and in their exit interviews they all stated that they left because they were asked to carry out tasks where training hadn’t been given. You could use this information to include training for these tasks in your Induction for future employees. You could also include a section in your PA’s Supervisions sessions to discuss any training needs.
If you have any questions about anything that is disclosed to you in an exit interview, then you can call Independent Lives’ Information and Advice Team on 01903 219482 or email [email protected].
Payments to make at the end of employment
When your PA’s employment ends there are a number of payments that may need to be made to them (if applicable).
If you use a payroll service they can organise for any relevant payments to be included on your PA’s last payslip and they will also process a P45 when all the payments have been calculated. If you do not use a payroll service you will need to organise for these payments to be made yourself.
Please ensure any payments required are agreed by your funding body, where applicable, before payroll process the last payments for your PA. If your DP is funded by Continuing Healthcare (CHC) then any redundancy and notice payments will need to be approved by panel before payments are made. For further advice on this, please contact our information and advice team.
Final payments may include the following:
- Outstanding wages, mileage and expenses
- Outstanding holiday pay
- Notice pay
- Redundancy – For further advice on this please call our Information and Advice Team on 01903 219482 or you can also find more information on this in our factsheet 6.2: Redundancy.
Providing references
As an employer of personal assistants, you are not obliged to give them a reference when they leave unless this is a requirement of the PA’s employment contract. However, it is good practice, especially when your PA leaves on good terms.
If you do provide a reference, you should consider carefully the legal implications of providing a reference. It is vital that you make sure that what you say is true, accurate and a fair representation of the person. An ex-employee could bring action against you for libel, discrimination or defamation of character through a Court or Tribunal if they consider the reference to be inaccurate.
On the other hand, you should avoid giving an unsatisfactory employee a good reference, because:
- a good reference could weaken your case in any claim for unfair dismissal by the ex-employee
- any new employer could claim damages if the employee proves to be unsatisfactory and material information was omitted from the reference
It is important to note that if you refuse to provide a reference for a PA who has brought an unlawful discrimination claim against you, the employee could also bring a victimisation claim against you. You can contact Independent Lives for further support on this or your Employers Liability Insurance may be able to support you with a basic reference template.