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Care worker Employed by individuals are they domestic servants?
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#1 Posted : 19 July 2005 12:03:00(UTC)
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Posted By jackw.
Hi views please. Under the new "direct payments" initiative Indivduals requiring care at home can access funds from the LA and employ staff directly. Can they be considered "domestic servants" and thus not covered by H&S law?
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#2 Posted : 19 July 2005 12:08:00(UTC)
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Posted By J Knight
This seems to be an evolving area of the law, but as far as I know being a domestic servant has a number of conditions, such as living in and being paid expenses plus board and lodgings rather than a wage. so I think they are not, and that is the advice I've given in the past when advising a brokerage service managed by my ex-employer.

There have been ET cases (most notably one for sexual harrassment) where the commissioning authority has been seen to be the employer, but this concerned an externally managed direct payments system. BTW, IANAL,

John
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#3 Posted : 19 July 2005 13:44:00(UTC)
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Posted By Adam Hammerton
Jack,

We have been advised by the HSE (although other authorities have apparently had differing advice) that carers employed by the service user receiving the direct payment are not domestic servants. Also, because the service user is being put into the position of an employer by the authority, the authority will retain a section 3 duty and are expected to actively assist the service user (provide training for the carer, assisstance with risk assessment, etc).

Direct payments are a messy affair and are causing us more than a few headaches.

Adam
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#4 Posted : 19 July 2005 14:02:00(UTC)
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Posted By J Knight
Part of the confusion here is the (correct) idea that a domestic premises is not a workplace; however, people working in domestic houses are still at work,

John
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#5 Posted : 19 July 2005 14:09:00(UTC)
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Posted By steven bentham
The direct payments scheme does not allow the Local Authority to absolve itself of responsibility and therefore is still covered under the Health & Safety at Work Act.

The individuals providing the care are not really self employed, the L.A. sets the payment rates, who will receive care, the standards of the care and how it is delivered, perhaps dictates the uniform worn by staff.

I hope any LA's doing this are recognising their responsibilities and not using this as an excuse to avoid training and support for people who do a valuable job.
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