Live-in carer developed employment status

Posted: 23rd January 2019

Elderly careAs relationships and working arrangements change, self-employment can morph into an employment status over time.

That happened in the case of a live-in agency carer who worked 12 hours a day for the same client for over three years.

The agency generally provided carers on a rota basis but an elderly man’s nephew (the client) wanted someone who would commit to a live-in placement, lasting at least six months, to provide care as and when required.

In the event she stayed for years and, after her services were dispensed with, she lodged a complaint with an Employment Tribunal (ET).

Following a preliminary hearing, the ET found that the woman was an employee. The fact that she had paid her own Income Tax and National Insurance Contributions was not decisive. The client had described himself as her employer in the termination letter and other correspondence.

She had lived in throughout the three-year period and, albeit informally, had received holiday pay. For most of the period she was paid by direct debit, only invoicing for overtime.

The agency laid on replacement carers when she was on holiday, but that did not mean that she had herself arranged such substitutions.

The level of control that the client exerted over her had led to the development of a master/servant relationship.

The mutuality of obligation required for an employment relationship was present and there was nothing to indicate that she had been running her own business.

In rejecting the client’s challenge to that ruling, the Employment Appeal Tribunal (EAT) noted that he had perhaps not intended his use of the word ‘employee’ in correspondence to have legal effect. However, he had indicated in trenchant terms his reluctance to accept independent action on the woman’s part.

The gradually decreasing level of oversight to which her work was subjected by the client was a mark of his increasing trust in her and did not affect her employment status. The ET’s conclusion was amply supported by findings of fact and the client’s appeal was based on over-analysis of the reasons it gave.