The employment rights of personal assistants

(illustration: Paul Blow/Eastwing)

An impending surge in the number of personal assistants is set to highlight a range of employment issues. Louise Tickle reports

For people seeking a career in personal care, the job market’s looking rosy. Skills for Care’s recent report on the adult social care workforce suggests that the drive to ensure service users hold their own personal budgets means there will be a five-fold increase in the number of personal assistants in England by 2025, from 168,000 in 2010 to 722,000.

But though the jobs might be there for the taking, when a workforce expands this quickly, a plethora of employment issues can arise.

The relationship between a personal assistant and the budget holder they support is unusual. The budget holder employs the PA’s services, yet they may find themself unable, by virtue of illness, disability or vulnerability, to effectively call the shots. To complicate things further, PAs often don’t understand their employment rights.

The Department of Health is developing a strategic framework for personal assistants, due to be published later this year, which will aim to clarify some of the issues facing personalised care and support. In the meantime, Unison has stepped up its campaign for PAs and the people who employ them to have proper information about their rights and responsibilities.

The union is also in the process of recruiting someone to research the issues facing PAs, and has recently published a leaflet to help PAs in the workplace.

A typical confusion, says Allison Roche, Unison’s assistant national officer, happens when personal assistants believe they’re self-employed rather than the budget holder’s employee. “This causes problems around taxes and national insurance, and it comes out of ignorance around contractual obligations,” she says.

Often, Roche continues, neither the budget holder nor the personal assistant really understands their respective obligations under employment law. And from such confused beginnings, any disputes or issues that emerge over time can cause the working relationship to deteriorate.

Lisa Gillespie is head of relationship management at Fish, a company offering specialist insurance for personal budget holders. She says: “Recognising that employers and employees have certain responsibilities is essential before you even start the interview process.”

Gillespie adds that new employers, who may be vulnerable, are likely to be unaccustomed to managing staff and may feel uncomfortable being firm. “Sometimes people will employ someone they know,” she points out, “and the line between friendship and employer and employee gets crossed.”

These blurred boundaries can lead the PA to believe everything is going well, when in fact the budget holder is unhappy and frustrated. But budget holders can find it difficult to find a fair reason to terminate the contract. “Often what we’re dealing with are many little things that aren’t necessarily gross misconduct,” says Gillespie. This can lead to the appearance that PAs are being dismissed on a whim.

Unison has expressed concern that PAs can end up isolated and with very little peer support if things do go wrong. There are currently no specialist mediation services to help resolve employment disputes, so the only recourse a PA has is to an employment tribunal – and that does not guarantee protection (see case study).

Roche says budget holders with little or no management experience need more guidance in all aspects of becoming an employer. Training on interviewing and managing should be freely available, and a free specialist mediation service should be easily accessible across the country to help both parties come to an agreed solution.

“All care workers need to be Criminal Records Bureau checked and regulated professionally, with their registration linked to clear qualifications,” she adds. Roche suggests local authorities become the employers of PAs, rather than the budget holder. Councils should also be responsible for vetting and barring, together with the creation of a local register of approved workers.

Being a directly employed PA does offer some stability, such as holiday and sick pay, says Alex Fox, chief executive of NAAPS, the UK network for family-based and small-scale ways of supporting adults. But he adds: “Not everybody on direct payments wants to become an employer, and there are PAs who would prefer to be self-employed.”

Setting up as a micro-enterprise is one way to do this, Fox says, and means PAs can provide care to budget holders who prefer not take on the responsibilities of being an employer. “A small group of workers could get together and still deliver personalised care to a few service users,” he points out.

Managing staff is an easy thing to get wrong and even big companies with extensive experience often fall foul of the law. Ultimately, though, the budget holder who becomes an employer must follow strict employment law or risk the stress of having to defend charges of unfair dismissal. It’s a tough message, but if it’s not acted upon, many more PAs will end up beating a path to the tribunal door.

When the PA-employer relationship goes sour

Workplace disputes can arise despite the best of intentions. One situation ended on a sour note after the budget holder felt her personal assistant was taking unwelcome control of her life. The PA would, for instance, take it upon herself to research utility companies’ energy prices, inform her employer of the cheaper deals she’d found and then get cracking on the paperwork to effect a switchover.

When an employee goes above and beyond the call of duty to be helpful, it can be difficult to protest. Over time, the budget holder began to feel she had little choice about how she lived her life. The PA insisted on making “improvements” to decisions that her employer had already taken and was perfectly happy with.

The employer began to feel increasingly unhappy with the situation, but also felt uncomfortable about blocking her PA’s repeated attempts to improve her domestic arrangements.

At the point where she felt it had become intolerable, she terminated the PA’s contract. This came as a huge shock to the PA, who didn’t understand the reasons behind the decision. The PA felt she had gone to a lot of extra effort to improve her employer’s life, and was having all her hard work thrown back in her face.

The PA took the case to an employment tribunal. The tribunal found proper employment procedures hadn’t been followed: the budget holder had issued no official warnings outlining her concerns, so she had given the PA no opportunity to change her working practices. Procedurally, therefore, the dismissal was unfair.

However, having considered the impact of the working arrangements on the budget holder, the tribunal decided to use the leeway given them in employment law to allow dismissal for “some other substantial reason”, and the PA lost her case.

* Some details have been changed to protect identities

Personal assistants’ rights

PAs have the right to:

● Be classed as an employee if they have set hours, take instructions from their employer and have to do the work themselves rather than being able to send a substitute;

● Be paid the national minimum wage and work no more than an average of 48 hours a week;

● Maternity leave and protection from dismissal due to pregnancy;

● Protection from discrimination, harassment and victimisation;

● Public liability protection through their employer’s insurance;

● Safe working conditions;

● Access to employment information and advice through the local authority, NHS or user organisation.

For more information, visit our special report on PAs:  https://www.communitycare.co.uk/static-pages/articles/personal-assistants

Source: Rights at work for personal assistants, Unison

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