This week we are once again looking at employment status but through the lens of domestic staff.

The question this week is:

The Claimant, Ms Phillips, was a carer who found work via the agency Universal Aunts. Mr Chatfeild-Roberts, the Respondent, used the agency to arrange overnight carers for his uncle, Colonel Brooke.

The Claimant was one of the carers used by the Respondent and the agency would rotate carers every three weeks. After some time, the Respondent felt it best his uncle had more consistent care and asked the agency if any of the carers would be able to commit to a more permanent structure of at least six months.

The Claimant began permanent residence with the Colonel and her duty was to be a live-in carer working a minimal of 12 hours a day with additional hours as and when required. The Claimant had one day off a week which was covered by another carer sent by the agency. The Claimant worked under this arrangement for three years.

Initially the Claimant was heavily supervised by the Respondent, who would spend at least one night a week sleeping at his uncle’s house. This supervision became less stringent due to his satisfaction with the Claimant’s work.

The Claimant performed a number of tasks to care for the Colonel including arranging hospital appointments, buying shopping, cooking, cleaning and organising tradespeople to make repairs. In communications between the Claimant and the Respondent, she was regularly referred to as an employee or given the impression that the Respondent had a large degree of management control over her work.

The Claimant was paid gross directly by the Respondent but was left to organise her own tax and NI. The Respondent also gave the Claimant a pay rise during the duration of the arrangement. This pay rise was not prompted by either the agency or the Claimant.

During the course of the Claimant’s tenure she only took four periods of leave. Two of these were over Christmas seasons, once to visit her sister and once to attend jury service. Whilst the Claimant was on leave she was paid full pay and the agency sent carers to cover the Colonel’s care needs.

During her final period of leave, two weeks’ jury service, the Respondent was notified by the covering carer that the Colonel’s care needs were not being met and the house was dirty. The Respondent terminated the arrangement by letter. The Claimant, believing herself to be an employee and unfairly dismissed, initiated ET proceedings.

A preliminary hearing was held to determine the Claimant’s employment status. The Respondent argued she was self-employed as proved by her organising her own tax and NI. The Respondent also alleged she had the right to substitute herself with other agency carers, was not subject to management control and also was not due holiday or sick pay – the pay on leave being discretionary gifts for Christmas. The Respondent also tried claiming the Claimant was an employee of the agency.

The ET held that the Claimant was an employee, it found the Claimant was initially subject to a large degree of control but upon gaining the Respondent’s trust was subject to the same level of scrutiny as an employee who worked from home.

It held that the Claimant had no right of substitution proven by the Respondent wanting a permanent live-in carer, the agency cover was there for cover. This reasoning was also used to dismiss the notion that the Claimant was an employee of the agency. The Respondent appealed but the EAT rejected the appeal for similar reasons. The claim could have been bigger had the Claimant claimed for sleeping over at the Colonel’s house because the issue of whether sleeping over amounts to work for which an employee should be paid is very much a live issue.

The takeaway point:

Yes, agency staff, no matter how informal, can become permanent employees if the employer shows desire to make the arrangement permanent. In this case when the employer asked for a carer to move in for 6 months on a permanent live-in basis, the carer ceased being a worker of the agency and became an employee.

The trap many employers, not just those recruiting domestic staff, fall into is thinking that because the arrangement is quite informal with little in the way of contractual documents, the person cannot be an employee. Case law has proven the key to employment status is the performance of the working contract and the relationship between the parties.

In this case, the employer’s treatment of the carer and the way her work was performed clearly suggested she was an employee. What is also worth noting on this case is it might have been better for the employer to concede employment status and possibly even unfair dismissal and argue any award should be reduced significantly due to the carer’s contributory fault.

Had they done this, it could have saved significant cost on preliminary hearings. Without knowing the exact remedy, it is possible these costs – including instructing a QC for the appeal – will outweigh any potential award the Claimant is given for her dismissal.