Taking care with the law
Questions answered by MIKE CARROLL, employment law consultant at Collinson Grant
Caring Times, May 2014
THE DIRECT ROUTE AROUND TUPE
Q: My company employs carers to look after adults with learning difficulties in their own homes. We have been approached by the parents of several such people, who currently live together and are looked after by carers employed by a charity. The parents are each about to take over responsibility for providing their relative with care under the Direct Payments scheme and want to use our services. But none want to continue using the current carers. If we do not employ them, would we get into trouble under TUPE?
A: TUPE, or the Transfer of Undertakings (Protection of Employment Regulations) 2006, applies where there is a change in the service provider but the client remains the same. Here, however, the client is currently the local authority which pays the charity to provide care. Under the Direct Payments scheme, your client will be the parents themselves. So, because the identity of the client has changed, TUPE should not apply. Also, TUPE may not apply where the nature of the service being provided changes substantially under the new provider. The rules are complex and cases differ, so it is important to obtain specific legal advice about your own circumstances.
WHO PICKS UP THE BARRING TAB?
Q: One of my employees has asked me to pay the fees for their Disclosure and Barring Service check. Do I have to? Or, because it is a condition of employment, am I entitled to ask the employee to pay?
A: Because Disclosure and Barring Service (DBS) checks are ‘owned’ by employees, a case could certainly be made that employees should pay for them. But in the social care sector for example, it is essential to make sure that any reclaimed expense does not reduce pay below the National Minimum Wage. Although they don’t have to, we suspect that many employers will pay the fees themselves because they are keen to take advantage of the opportunity to check the DBS records of employees who have subscribed to the update service. Subscription is required at the time an employee makes an application for a DBS certificate or within 14 days of the certificate being issued. Employers are entitled to make subscription a condition of employment and to embed it into contractual terms, but, as employers get a benefit, employees might unsurprisingly still expect them to stump up for the subscription fee.
CONCILIATION – IS IT MANDATORY?
Q: I recently dismissed a carer for gross misconduct at one of the care homes where I am the human resources manager. I have received a letter from Acas (Advisory, Conciliation and Arbitration Service) inviting me to take part in a pre-claim conciliation process. We are quite sure that the dismissal was not unfair. Is it mandatory to take part in conciliation or can I simply refuse?
A: From 5th May 2014, it is a statutory requirement for Acas to contact both the ex-employee and the former employer to see if they can resolve the matter without the need to commence proceedings in the Employment Tribunal. However, you can simply decline the offer. Although Acas is obliged to explore resolution in this way, it is not mandatory for either party to agree to conciliation. If that is the case, then Acas will issue a certificate to that effect, allowing the ex-employee to commence proceedings at the tribunal.
Q: I own a chain of 10 care homes. I have decided that it would be a good idea to install CCTV cameras to monitor standards of care but I am unsure about the legal framework. Do I have to consult the staff? Do I have to consult service users and their relatives? Are any parts of a home ‘out of bounds’ for cameras?
A: There is no need to consult staff, service users or relatives if you suspect that there is a pressing need for such action. If you suspect theft, abuse or any other crime then you may use CCTV for monitoring and gathering evidence. Of course, it is vital to protect the privacy of service users when looking at the location of the cameras. For example, you would not wish to have the camera in a toilet or a changing area and, when the action under investigation is centred on a service user’s own room, thought will have to be given to sensitivity appropriate to that environment. In 2013 the Home Office published a code for public authorities called ‘Surveillance Camera Code of Practice’. Although it does not have the force of law, it suggests that courts or tribunals may take into account any failure to abide by the code in any decisions they make. At paragraph 1.17, the code states that operators of surveillance camera systems who are not public authorities should also adopt the code and its guiding principles voluntarily, even though they are not bound by it. The code can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/204775/Surveillance_Camera_Code_of_Practice_WEB.pdf
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