Chris Cooper, who is a senior associate in the employment team at international law firm Taylor Wessing, writes about some of the legal issues that involve private household workers.
The status of the individual carrying out the work is important, as it determines the extent to which employment laws in the UK will apply and the family’s obligations.
Generally, an employee is required to carry out work personally, usually for a minimum number of hours, in return for payment and is directed where, when and how this should be done. For example, this may typically include a personal assistant, nanny or cleaner where there is regular agreed work but may exclude a maintenance worker where ad hoc work is required. Employees have minimum legal rights that apply regardless of any agreement with the family, including entitlement to minimum wage, paid holidays, statutory sick pay and minimum notice of termination. In addition, employees are protected from unfair dismissal and discrimination.
What are the key issues prior to commencement of employment?
Prior to the commencement of an employment relationship, the family should review the prospective employee's CV and consider requiring consent to a background check to confirm their suitability for the role. It is common to check past work experience by way of references and sometimes credit history and criminal convictions, particularly if the individual will care for family children.
If the employee is suitable, it is a requirement that the family check that he or she has the right to work in the UK before commencement of employment. The family should request to see the employee’s original passport and, for non-EU nationals, a work visa and take a copy of the page confirming his or her immigration status. A failure to carry out immigration checks could result in a civil fine of up to £10,000 for each illegal worker and amount to a criminal offence.
After checks are complete, the next step is to prepare a written contract of employment. Employees have a right to receive a statement containing minimum terms and conditions, including the role title, start date, pay, holiday entitlement, sickness absence procedure and notice entitlement. A failure to do so could result in a basic claim for up to £1,800. More importantly, however, without a written agreement the family employer does not have its interests protected and significant uncertainty can arise in the future.
The family should set out in writing the duties it requires the employee to perform and reserve the right to make changes to those duties, including where and when these are carried out. The agreement should also set out expectations regarding commitment, performance and conduct and the required notice to be given by either party to terminate the relationship.
A key issue for the family employer is trust and security in the protection of personal information relating to the family. Household employees should be required to agree to a robust confidentiality obligation that protects the immediate and wider family from the disclosure of personal information such as information about financial affairs, lifestyle and private lives and the family home as wells any personal documents. This will ensure that, if an employee removed or disclosed personal information without authorisation (e.g. to the press), the family will be well placed to take further action to protect its interests.