Many people with an international element to their business or their lifestyle choose to employ domestic staff from overseas. Being an employer brings with it a lot of responsibilities; which you might be used to in a corporate context, but not in a personal capacity.
The logistics of becoming an employer can seem daunting, but a lot of the difficulties come with making the initial arrangements. At Collyer Bristow we can provide advice and draft suitable documents to help you to get things set up properly at the outset. Much of the below advice would apply to any employee, but we also highlight some specific rules relating to domestic staff and to overseas workers.
Are you the employer?
Many people engage domestic staff through an agency. If this is the case then it may well be that the agency is the employer, and not you. There is no straight-forward answer to the question of who is the employer, as it will depend on all the facts of your particular arrangement. But if you are paying the agency, rather than the employee directly, then that would suggest that you are not the employer. If you are uncertain, speak to the agency or take specific legal advice.
Duties to all employees
- If you are the employer, you will have a lot of obligations.
- You need to provide a written employment contract, at least within two months of the start date, but ideally as early as possible so that everybody is clear on what is expected. The contract needs to cover a specific checklist of terms and conditions including pay, notice, holiday, sick pay, pension, hours and place of work. Domestic workers often have access to sensitive information, so you might also want to consider a confidentiality clause.
- As an employer you need to register with HM Revenue and Customs and set up a payroll system. Alternatively you can appoint a professional payroll agent to deal with this for you and to provide pay slips, P46s etc. to your employees.
- Even if you only have a single employee, there is now provision for all employers to automatically enrol their employees in a pension. These obligations are being phased in between now and 2017. Unless your employee actively opts out, then you will need to enrol them in a pension scheme, make pension contributions yourself and also deduct the employee’s contribution directly from his or her salary. The government’s NEST scheme is available to assist employers in complying with their pension provision responsibilities.
- All employers need to take out an employer’s liability insurance policy. This is designed to cover any claims by an employee who is injured in the course of his or her work.
- You are obliged to provide certain statutory rights and payments to your employees. These include sick pay, and various family rights like maternity leave and pay, paternity leave and pay, and parental leave.
- You should have written disciplinary and grievance procedures in place.
- You should undertake a health and safety risk assessment to ensure that you are providing a safe working environment.
National Minimum Wage
Even if your staff are only in the UK for a short period, while they are here then certain UK employment laws will apply to them. This includes the national minimum wage. This currently stands at £6.31 per hour for employees aged 21 and over, and while your employees are working in the UK, you must ensure that they are getting paid at least this amount.
The national minimum wage applies to domestic workers, with the only exception being if they are treated as members of the family. For this exception to apply, then the worker must live in the family home, must not be charged for accommodation or meals, and should share tasks and leisure activities with the family as a whole. This exception is of relatively narrow application, and the Employment Tribunals will be keenly astute in identifying an employer trying to falsely create the impression of a “family relationship” just to get cheap labour.
Employers might be forgiven for thinking that the minimum wage does not apply to domestic staff, because they also get bed, board and other benefits as part of their remuneration. But there are rules on what can be counted towards the minimum wage. Accommodation is the only benefit in kind that can be counted, and only up to a certain limit. There is a specific accommodation allowance, currently £4.91 per day. Where accommodation is provided, then this allowance can be added to the employee’s actual salary to make it up to the level required by the national minimum wage.
The Working Time Regulations govern the number of hours someone can be required to work. These regulations recognise that domestic work is different to a 9 to 5 office job, and they do make some exceptions for domestic staff. The usual limit of 48 hours per week does not apply to domestic workers. They can work longer hours, without having to sign an opt-out.
However there are still some limits on the hours domestic staff can work; they must be given at least one day off per week (or two per fortnight), a rest period of at least 11 straight hours per day, plus a shorter rest break of at least 20 minutes during any shift of longer than six hours.
There are no exceptions for domestic workers in relation to annual leave. They are entitled to paid holiday of at least 5.6 weeks per year, so if the employee works five days per week that will be 28 days.
There are various routes that allow foreign workers to work in the UK; they might be entitled to work here because they have links to the UK, because they are an EU citizen or because they have a relationship with an EU citizen.
There are also some specific rules for domestic workers. If the employee is already an established member of your domestic staff abroad, then you can bring them with you to work in the UK for a maximum of six months.
Whatever the basis for your employee’s right to work in the UK, it is your responsibility as employer to check that his or her documents are correct. Make sure you see, and keep a photocopy of, the passport or the relevant visa which establishes a right to work in the UK. If it is not a permanent right to work, you need to check the documents at least every 12 months and keep your records updated.
This is a serious obligation, failing to comply with your obligations to check an employee’s right to work is punishable by fines of up to £20,000 per employee.