2020-02-17
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Minimum wage and working time for care providers

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Posted by Tina Chander on 26 September 2016

Tina Chander Partner - Head of Employment Law

In a case described by Unison as the “worst breaches of pay rules” it has ever seen, seventeen care workers employed across the London borough of Haringey have lodged claims against care-provider Sevacare in the employment tribunal for failure to pay the minimum wage.

Haringey Council (responsible for commissioning the care) is also being sued for its failure to ensure that the workers were being paid properly. This case brings the issue of care workers’ pay into the spotlight and highlights the importance for care-providers to ensure that they comply with UK minimum wage laws.

In this case the care workers, all of whom are on zero-hour contracts, allege that the unpaid time spent travelling between clients has the effect of reducing their hourly pay to below the national minimum wage. The workers also allege that time spent providing live-in care is paid at below the minimum wage as a result of the ‘round the clock’ nature of the work. The claim is being backed by the workers’ union Unison.

The law on wages and working time

Care workers (including agency workers) are entitled to the protection of the Working Time Regulations 1998 (WTR). A National Living Wage was introduced in April 2016 for all workers over the age of 25, which acts to ‘top up’ the minimum wage for those workers.

 
25 and above National Living Wage £7.20 per hour
21 to 24 National Minimum Wage £6.70 per hour
18 to 20 National Minimum Wage £5.30 per hour

Under the WTR, working time is defined as any period during which a worker is working, at his or her employer's disposal and carrying out his or her activities or duties, or receiving relevant training. It therefore includes time spent:

  • Travelling in connection with work, including travelling from one work assignment to another
  • Travelling from and to home for the first and last customer visits of the day (although this only applies to ‘mobile’ workers without a fixed or habitual place of work)
  • Working lunches
  • Time spent on call at the workplace
  • Training or travelling to training
  • At work and under work-related responsibilities even when workers are allowed to sleep

It does not include time spent:

  • Travelling between home and work (unless the worker is a ‘mobile’ worker as above)
  • Away from work on rest breaks, holidays, sick leave or maternity leave
  • On industrial action
  • On call away from the workplace

Travel between clients

The Sevacare workers’ primary complaint is that they are not paid for the time spent travelling between clients. Unison says that the workers can often work a 14-hour day but may only be paid for half this time. One care worker says that she often spends more time in a day travelling between clients than she does caring for them, and that she can spend up to 7 hours per day travelling and not be paid for it.

This is not the first time a care provider has been sued for failure to pay its employees for their travel time; earlier this year a large care company paid £1,250 to a carer in an out of court settlement after failing to pay her travel time over a 6 month period. In 2014 HMRC ordered a major care home provider to pay £600,000 in compensation to its workers for unpaid travel time.

Overnight working

The workers also claim that they are often still working during ‘off duty’ hours but are not paid accordingly. As an example the workers say they stayed, for 7 days at a time, in the home of an elderly woman with severe dementia. The workers were on duty for 24 hours a day tending to her needs at all times, including through the night. One carer says it was like being “in prison” as they were not allowed to leave the house all week. The workers say that these long shifts have the effect of reducing their hourly pay to as little as £3.27 but Sevacare argues that in this situation the workers are covered by a ‘daily average agreement’ under which they are paid for 10 hours per day.

Are care workers entitled to be paid for time spent sleeping?

This was considered in 2013 in the case of Whittlestone v BJP Home Support Ltd. Here the carer was required to stay overnight in the homes of her patients and, if the need arose, tend to them during the night. The court found that the carer was entitled to be paid for the hours spent sleeping even though there was no evidence that she was ever required to provide care during this time. The court took into account that the carer would have been disciplined if she had not been present throughout the night and that she could not leave the house during this time. She was at the disposal of her employer and was not free to act independently.

Daily average agreements- are they legal?

The WTR distinguish some work as ‘unmeasured’, for example where an employee is paid a set amount to undertake a particular task regardless of how long it takes. Live- in care workers are often an example of workers carrying out unmeasured work.

Employers can either pay unmeasured workers for every hour worked, i.e. the time spent awake and tending to the patient, or can enter into a ‘daily average agreement’ with the employee, setting out the average hours that the employee is likely to spend working each day. For such an agreement to be legally valid it must stipulate a (genuine) daily average amount of hours that the worker will likely spend carrying out their tasks, must be drawn up before the start of the pay reference period to which it relates, and must be signed by both the employee and the employer.

The Sevacare workers’ case on overnight working will therefore likely consider whether one of these agreements was actually entered into, whether it is legally valid, and whether 10 hours per day is a genuine average of the amount of hours worked by them. Even if the agreement began as a genuine estimate of working time, this can be subject to challenge at a later date so built-in review periods are strongly recommended.

How can care provider employees ensure that they are complying with the law relating to pay?

Care providers should:

  • Review workers’ contracts in light of the above information.
  • Pay all employees in accordance with UK wage requirements.
  • Introduce a policy of self-reporting for instances where workers are working beyond their contracted hours.
  • Be aware that workers are entitled to be paid for hours spent sleeping where they are required to do so at their place of work.
  • Ensure that workers are paid for the time spent travelling between their patients.
  • Review any daily average agreements with employees to ensure that they are legally valid.
  • Consider adopting some or all of Unison’s Ethical Care Charter suggestions.
  • Review the practical and logistical travel arrangements to reduce travel time.

We understand that care providers are operating in the most challenging of financial environments so working practices should always be designed following an assessment of mandatory regulatory/legal compliance and any developments in case law.

If you would like assistance in ensuring that your organisation is complying with the law in relation to care worker pay or advice on the implications of failure to do so, please get in touch with a member of our team.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

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