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Case Study: Advising a Professional Deputy on their Obligations as an Employer

Employment Law Team

How Christine Gannon, Employment Law solicitor, acted for a Professional Deputy to advise on and draft a legally compliant contract and handbook containing all relevant policies to manage the employment relationship between their client and a live-in carer.

The situation

Although Peter, the Professional Deputy, could have instructed his in-house Employment Law colleagues, he was mindful of the judgment in Re: ACC. To avoid conflicts of interest he made a best interest decision to instruct our firm as external specialists with significant experience in live-in care employment arrangements.

Eddie, who was in his eighties, required 24-hour round-the-clock care which was being provided by an agency.

When the pandemic struck, Eddie’s care was mainly being provided by one agency member of staff, Glenn. This was because of the restrictions in place due to lockdown and understandable concerns about limiting Eddie’s contacts. The family wanted to directly engage Glenn to ensure that Eddie would continue to receive consistent quality care.

Peter instructed us to advise on the steps that would need to be taken to engage Glenn directly, including preparing the necessary contract of employment. This needed to be fair to both parties as Glenn was greatly valued by Eddie and his family.

What Martin Searle Solicitors did

We identified that the contractual arrangements that both the family and Glenn had in place with the agency prevented Glenn from working directly for John’s client. We advised that the family should enter into discussions with the agency to release Glenn, which the agency agreed to do by paying a release fee.

We also advised on the steps that would need to be taken prior to employing Glenn, including undertaking right to work checks, setting up payroll and meeting their obligations to provide a pension.

Christine made sure that Glenn’s rates of pay were higher than the National Minimum Wage and that Glenn would receive appropriate rest breaks, rest periods and holidays. This included making sure that Glenn was able to take breaks away from Eddie’s home during the week, which the family were able to cover.

We advised that for longer periods of absence, such as holidays, cover should be provided by the existing agency. We also identified that as there were no formal written arrangements in place about Glenn’s occupation of Eddie’s home. Christine provided a licence to occupy within his contract of employment.

Christine also provided a comprehensive Staff Handbook, which included all necessary employment law guidance as well as a safeguarding policy to set out the expectations of both the client and Glenn. This also contained an up to date vaccination policy and holiday policy which reflected good employment law practice so as to avoid any future employment law disputes.

The result

Glenn was released by the agency from his post termination restrictions and he happily signed up to his contract of employment and agreed all the policies in the handbook.

If you are a Professional Deputy or Attorney and require Employment Law advice and/or contracts and handbooks on behalf of your clients, we can help. Contact us today on 01273 609911, or email deputyservices@ms-solicitors.co.uk.

 

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