There has been a recent emergence of organisations sub-contracting self-employed individuals to complete mental capacity assessments on their behalf. Tim Farmer of TSF Consultants explores why such an arrangement may either be in breach of employment law or may be a cause for concern for those instructing such organisations.
Those using sub-contractors may not legally be able to provide training, monitoring and management regarding how assessments are carried out. Worse still, they cannot insist the sub-contractor carries out the assessment in person.
What is the difference between a sub-contractor and an employee?
According to the CIPD 1, the professional body for HR and people development, the term ’employment status’ is the arrangement under which an individual is engaged to work for an employer. Deciding whether someone is an employee or self-employed has tended to rely on a detailed analysis of the facts of the employment relations. It focuses on 3 main elements.
The CIPD note that the question of control will look at whether the employer has a contractual right of control over the worker, rather than whether they have day-to-day control over how the worker carries out their job.
Generally, employers will operate control over:
In most cases, in order for there to be a contract of employment, there has to be a requirement on the individual to provide services personally. This means the individual is required to perform their contractual duties themselves.
A sub-contractor must be allowed to substitute themselves with another. This may be because they are unable or do not want to perform the work themselves.
The recent Central Arbitration Committee decision in IWGB v Roofoods Ltd t/a Deliveroo provides a practical example of how personal service, and the right to substitute, will be examined in practice.
What does this mean in practice?
If a mental capacity assessment provider is using sub-contractors, there is no guarantee that the person conducting the assessment is actually the person the provider has sub-contracted.
It may also mean the provider has no control regarding the quality and consistency of outcomes. Nor can they train and performance manage the sub-contractors to continually meet a recognised professional standard. Thereby maintaining the required level of expertise and knowledge can be extremely difficult.
Need a mental capacity assessment?
If you need a mental capacity assessment and your provider uses self-employed contractors perhaps there is a question to ask. “You are prevented from training, monitoring and managing your sub-contractors in respect of company procedures and minimum response times. You cannot control who actually carries out the assessment. Therefore how can you guarantee that quality and any recognised professional standards will continually be met?”
At TSF Consultants, we employ all our assessors directly so that we can ensure quality, consistency and that the person instructed is the person conducting the assessment. To discuss a possible referral or to find out more about how TSF Consultants ensures quality, consistency and expertise please contact us at firstname.lastname@example.org or call 0333 577 7020.
1 Extracts from CIPD courtesy of Peeps HR.