Finding out if a PA is Employed or Self-Employed

When someone is considering taking on a Personal Assistant (PA) it is important to understand their potential employment status, which will affect the legal relationship and financial responsibilities between both parties.

For example, a PA Employer would be responsible for paying the tax and National Insurance for the PA(s) they employ, but a self-employed PA would be responsible for paying this themselves.

This is something that everyone considering taking on a PA needs to be aware of. To help understand this, there are some basic definitions of different employment statuses that a PA could have. These include:

When a PA is an employee

A PA who has a Contract of Employment is an employee
The PA employer is required to offer the PA work under the terms of the contract
The PA is required to accept the work offered under the terms of the contract
The PA must perform their work personally and cannot send a someone else to do this instead of them
The PA will be working under the control and direction of the PA Employer
The PA will be provided (by the PA Employer) with any equipment they need to enable them to fulfil their role as a PA
The PA pays tax through Pay As You Earn (PAYE), and National Insurance payments will be made on their behalf by the PA Employer
The PA will receive statutory benefits, such as statutory sick pay
The PA be entitled to holiday pay
The PA will be subject to the disciplinary procedures set up by the PA Employer.

It may be that the relationship the PA Employer intends having with the person is better described under a casual work agreement.

Casual worker

The term casual or relief worker applies to PAs who work with a supported person on a temporary basis or ad hoc basis.

Temporary work or ad hoc work is defined as being:

Work which occurs only once, and for a short period of time
Work which occurs more often but in an unpredictable or irregular way
Work where there is no obligation on the part of the PA Employer to offer the work
Work where there is no obligation on the part of the PA to accept the offer of work
Workers are entitled to be provided with a statement of the terms that cover their engagement
The Contract of Employment uses wording like ‘casual’ or ‘as required’.

In situations where you’re asking a PA to work now and again at different times on a casual basis, there may be no requirement for the PA Employer to offer work, and no requirement for the PA to accept any work.

Casual and relief workers have the right to receive holiday pay, the National Minimum Wage and to be auto enrolled into a pension scheme (if eligible).

If however, a casual/relief worker’s working pattern becomes, over time, set and regular, then this arrangement would have to be reconsidered as they may be regarded as a permanent employee. A casual worker’s working periods should consist of short, irregular work with gaps in between so that a continuity of employment is not established.

Having casual/relief workers available can really help a PA Employer manage their rota, such at times of sick leave or holidays. However, it is important to understand when casual work becomes permanent and what a PA Employer’s responsibilities are if this happens. It is helpful for some PA Employers to have several casual/relief workers available for them to approach to cover holidays and unscheduled emergencies.

Working out if a PA is self-employed or not

There are two areas to consider when trying to work out whether a PA is a self-employed worker or not. These relate to:

Employment status for tax purposes and
Employment status for work purposes

HMRC have outlined certain questions to help decide if a worker is self-employed for tax purposes. More information and a tool to help determine employment status, called “Check Employment Status for Tax” can be found in the link at the bottom of this page.

We cannot freely choose our employment status and it is determined by how our work is set up.

When it comes to the PA role, here are some helpful comparisons:

Employed (including casual/relief workers)	Self-employed
The person with the direct payment* determines when the PA will work.	The PA chooses when they will work.
The person with the direct payment* provides all equipment to enable the person to do their job.	The PA provides their own equipment.
The PA must agree time off for annual leave with the person with the direct payment*.	The PA informs the person with the direct payment* of when they will take holiday.
The person with the direct payment* determines the rate of the pay.	The PA determines their own rate of pay and informs the person with the direct payment. They may raise their rate without notice.
The PA has employment rights eg. to Statutory Sick Pay, paid holiday and the right to request flexible working.	The PA must make their own arrangements to ensure they can cover their finances in the event of sickness absence or holiday.
The person with the direct payment* supervises the PA.	The PA is not under direct supervision.
The person with the direct payment* lays out the terms of the arrangement in the form of a Contract of Employment and Statement of Particulars (written for those not working on a casual or relief basis).	There is not a written agreement, or the PA operate under a contract (sometimes known as a ‘contract for services’) that uses terms like ‘self-employed.’