You may well have read about George Lomas, the man who was taken to an Employment Tribunal by a carer who worked for him.  You may also wonder about the state of our employment laws, bearing in mind what happened.  After all, at first glance, it seems to be incredibly unfair.  A man who had just lost his wife to Parkinson’s was successfully sued by a carer whose hours of work Mr Lomas had reduced as a consequence of his wife’s death.  But in these sorts of cases, we always have to scratch the surface to understand how the law has been applied and why.

An employment relationship, like any other Mr Lomas and his wife received money from their local authority, with which they were able to pay for the care that they required.  They engaged the services of Jayne Wakefield who, at the point at which Mrs Lomas died, worked 30 hours per week for the family.  Whilst it is possible that Mr and Mrs Lomas didn’t see it that way, Ms Wakefield was their employee.  

As a result, they owed her the same duties that any other employer owes to its staff. It is plain to see that following the death of his wife, Mr Lomas did not require the same level of care as before.  This, in effect, created a potential redundancy situation in relation to Ms Wakefield’s employment.  But, rather than consulting with Ms Wakefield as a ‘normal’ employer might, Mr Lomas simply sought to reduce her hours of work to 16 hours per week.  Ms Wakefield treated this as a breach of her contract of employment, resigned and brought claims against Mr Lomas for both breach of contract and unfair constructive dismissal. The cost of getting it wrong Many might question how it came to this; certainly, it seems a great shame that this situation ended up before an Employment Tribunal.  But any employer, whoever they are, cannot change an employee’s hours of work, unless they has the contractual right to do so or the employee agrees.  Technically speaking, Mr Lomas was in breach of contract by changing Ms Wakefield’s terms and conditions in the way he did.  

Viewed from this perspective, I can see why Ms Wakefield won her case. Looking at the level of compensation that she was awarded, Ms Wakefield probably only received her notice monies and a statutory redundancy payment.  

This effectively acknowledges the fact that Mr Lomas had good reason for reducing the amount of work that Ms Wakefield was required to do; he just went about it in the wrong way.  But, according to reports, he was still required to pay out over £3,500 in compensation.  And that figure takes no account of the other costs, both financial and emotional, that people run up in cases such as these. Understanding your responsibilities When you take all the heat out of this situation, this is a case of an employer changing an employee’s terms and conditions without their consent.  That is always going to be a risky step. With the great benefit of hindsight, Mr Lomas would have been well advised to ensure that he had a clearly worded employment contract in place, setting out each side’s obligations to the other.  When his circumstances changed, technically speaking, he should have discussed the situation with Ms Wakefield.  If she did not want to accept the reduction in her working hours, Mr Lomas should have given her notice of dismissal and paid her the redundancy payment to which she was entitled. An increasing problem? We are frequently reminded of the fact that we have an aging population, whose care requirements are likely to become very much greater.  As a result, the frequency with which individuals will have to employ their own carers is also likely to increase.  With that in mind, it is essential that at the beginning of the care relationship, both sides understand what they are taking on and an appropriate contract is drawn up.  The implications of getting it wrong, as we can see, can be costly and upsetting on both sides. At stevensdrake, we have considerable experience of drawing up contracts for carers, as well as dealing with the disputes that can arise out of these relationships.  Contact us to find out more about how we can help. James Willis, Head of Employmentstevensdrake solicitors