Are employees in the Care Sector entitled to the national minimum wage whilst they sleep?
It is common for elderly, disabled or vulnerable individuals to have care packages that require their carers to stay overnight at their home. The thought being that the carer can be called upon immediately should assistance be required throughout the night. Are these carers who are technically ‘on call’ therefore entitled to be paid national minimum wage whilst they sleep?
There has been a lot of coverage surrounding this contentious matter lately and the following article looks what it means for both employees and employers in the care sector.
Last week the charity Mencap won an appeal to prohibit care workers who have to stay overnight as part of their job from being entitled to a six year back payment at the minimum wage.
What does the ruling mean for employers?
A previous tribunal decision ordered care providers to fund six years’ back pay for overnight carers, but it was argued that this was unfeasible, and many employers within the sector could be forced out of business by the decision due to the amount it would cost. As a result, the original decision was overturned.
This was a significant victory for the struggling care sector which warned two-thirds of employers could face bankruptcy if the decision was not reversed.
Carers had previously been paid a flat rate of approximately £25-£35 for staying overnight at the patient’s residence but the initial tribunal ruled that the employees should be entitled to minimum wage which was double the cost of paying them a flat rate.
What does the ruling mean for employees?
The national minimum wage act 1998 together with the national minimum wage regulations 2015 outline highly complex rules on how the number of hours worked by an individual are calculated. In relation to the care sector, the guidance states that carers are only entitled to have ‘sleep in’ hours paid for at minimum wage when they are required in the night to be awake to perform a specific duty.
It was estimated that the back payments would cost the sector £400m. To appease their employees some employers have taken the decision to increase the flat rate for their employees rather than pay minimum wage. While this is not a mandatory change for employers in the care sector it is a significant move towards compensating employees who were of the belief they would be receiving 6 years in back payments.
A spokesperson for Mencap explains“Unison originally took us to court and then we appealed against the verdict at the Court of Appeal, which was heard in March earlier this year. We did not want to do this, but we could not afford to pay the back-pay liability.
A charity and a union shouldn’t have had to resort to this - the Government failed to take any action on this critical funding issue and provide clarity on a changed interpretation of the law.”
This is by no means ‘case closed’. Whilst charities such as Mencap continue to call on the government for better funding to ensure workers can be paid what they deserve without placing the charity in jeopardy, from an employee perspective, the trade union, Unison is preparing to appeal this latest ruling to the supreme court in the near future.
If you are an employer or employee within in the care sector and have any concerns relating to this matter, do not hesitate to contact the Employment Team here at Lawson-West. In the first instance call 0116 212 1000 or 01858 445 480 for a free initial appointment during which we will be able to suggest the most appropriate course of action for your situation. Alternatively complete our online contact form and we will contact you directly.
At Lawson-West our Employment team has a wealth of knowledge and experience in various fields of employment law which means they can help both employers and employees and are national providers of employment law advice.
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